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concluding that defendant's testimony "reflected his understanding of the use of enhancements in the punishment phase; his reading selections, arguments, and responses to questions reflect[ed] an understanding of the proceedings and an ability to consult with counsel"
Summary of this case from White v. StateOpinion
No. 09-10-00080-CR
Submitted on October 13, 2010.
Opinion Delivered October 20, 2010. DO NOT PUBLISH.
On Appeal from the Criminal District Court, Jefferson County, Texas, Trial Cause No. 09-06329.
Before GAULTNEY, KREGER, and HORTON, JJ.
MEMORANDUM OPINION
A jury found Fidel Davis guilty of possession of a controlled substance and assessed an enhanced punishment of eight years in prison. He raises three issues on appeal. We conclude that under the facts of this case, the trial court was not required to hold a competency hearing, and the evidence was sufficient to support the conviction. The trial court's judgment is affirmed.
ISSUES ONE AND TWO
In issues one and two, Davis argues that the trial court erred in depriving him of a competency hearing to stand trial and that this deprivation violated his due process rights. Davis points to three instances that call his competency into question. He first references a letter he sent to the trial judge prior to trial.Grampal I caint . . . take this no more. My momma died the same day I came to jail I hire [attorney] . . . for my bond to get reduce $1,250 my bond still the same u have all the money. Like the bible say when I was hungry — u did not feed me when I was in jail u did not visit me you mad at me for not signin the paper on 1-3-03 turnin down $15,000 But [attorney] still get his way in your court and have a dope case. I caint' take this no more . . . Since I caint have a bond reduce. My bond supposed to be $5,000 dollars. Remember it is better for a camel to go threw a eye of a needle then for a rich man to enter heaven. You is my daddy daddy God say if you caint forgive your trespasser's how will he for give you. My brother use my bond money on my momma funeral. You . . . might not have me on your will. Growin up at times I didn't eat because we was to poor.
God bless you
have a great
day I will for my pray
for my enemies.In a side note on the letter, Davis wrote as follows:
In 2009 everbody was gettin there bond reduce but me. Please help! Why . . . everbody get bond reduce? To bond out and be with family. Nobody love me!The trial court responded, in part, to Davis as follows:
You have sent a pleading, motion or other paper to the court for consideration. You are also currently represented by counsel.
Art. 1052 C.C.P. provides that any pleading, motion or other paper filed by a defendant must be signed by the attorney of record. If the pleading, motion or other paper is not signed, the court shall strike it.
The matter you sent to the Court has been stricken pursuant to Art. 1.052 and will not be given consideration. All matters must be given to your attorney for proper presentation.In addition to Davis's letter, appellate counsel directs this Court to what he describes as Davis's "rambling dissertation regarding prior plea agreements, and general propositions of law." Finally, Davis points us to the following discussion during the punishment phase of the trial:
THE COURT: Thank you. Please have a seat. Get the jurors, please, sir.
THE DEFENDANT: Grandpa [judge], I can't believe it. Grandpa, I can't believe it. The wrong grandson you been trying to . . .
(THE JURY ENTERS THE COURTROOM)
THE COURT: Could I ask the defendant to stand, please. Mr. Foreman, could you read your verdict for us, please, sir.
. . . .
THE COURT: Okay. Then the verdict's — jury verdict is received and filed at 15 minutes until 3:00.
In accordance with the jury's verdict, the defendant is sentenced to serve a term of 8 years in the Institutional Division and remanded to the sheriff's custody to serve that term. If you'd take Mr. Davis, please. [Defense Counsel], you'll remain his counsel for as long as you take any post-conviction matters.
[DEFENSE COUNSEL]: Yes, I will, your Honor.
THE DEFENDANT: God bless you, Grandpa. Why you want to do this to me?
THE COURT: That's enough. That's enough.
[DEFENSE COUNSEL]: I'll walk back there for a second.
THE COURT: Sure.A competency hearing is required if the evidence is sufficient to raise a bona fide doubt in the mind of the judge as to whether the defendant is legally competent. Montoya v. State, 291 S.W.3d 420, 424-25 (Tex. Crim. App. 2009). Under article 46B.004(c) of the Code of Criminal Procedure, a trial judge's inquiry into a defendant's competency may be informal, rather than in a formal hearing. Montoya, 291 S.W.3d at 425; see also Tex. Code Crim. Proc. Ann. art. 46.004(c) (West 2006). "This allows the trial judge to informally determine whether the behavior of the defendant during a proceeding indicates a lack of rational understanding." Montoya, 291 S.W.3d at 425. "A bona fide doubt may exist if the defendant exhibits truly bizarre behavior or has a recent history of severe mental illness or at least moderate mental retardation." Id. Article 46B.003 states that one is incompetent to stand trial if one does not have (1) sufficient present ability to consult with one's lawyer with a reasonable degree of rational understanding, or (2) a rational as well as factual understanding of the proceedings against the person. Tex. Code Crim. Proc. Ann. art. 46B.003 (West 2006). In determining whether sufficient evidence is raised to create a bona fide doubt concerning a defendant's competency to stand trial, we afford great deference to the trial court's assessment. See McDaniel v. State, 98 S.W.3d 704, 713 n. 28 (Tex. Crim. App. 2003); Thomas v. State, 312 S.W.3d 732, 736 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd), cert. denied, 2010 WL 2888235 (Oct. 4, 2010). We review cases involving competency determinations for an abuse of discretion; we do not substitute our judgment for that of the trial court, but rather determine whether the trial court's decision was arbitrary or unreasonable. Montoya, 291 S.W.3d at 426. The letter sent by Davis to the trial judge, as well as Davis's "grandpa" comment to him during the punishment phase of the trial, may seem odd, but they do not demonstrate Davis could not rationally consult with his lawyer or did not understand the proceedings against him. The record reflects Davis's belief that bond was too high and that he was treated unfairly. During Davis's punishment phase testimony, which appellate counsel describes as "rambling," Davis requested that the jury sentence him to two years, rather than a longer sentence, because, as he asserted, the officers did not show probable cause to pull him over. He read from some legal sources about the use of prior plea agreements for enhancements and argued this use was improper. He commented that all the enhancements used in his case were "all plea bargain agreements" and that they should not be used. Davis's testimony reflected his understanding of the use of enhancements in the punishment phase; his reading selections, arguments, and responses to questions reflect an understanding of the proceedings and an ability to consult with counsel. He again indicated he wanted the jury to consider the low end of the punishment for his sentence. There was no suggestion by Davis's attorney, the prosecutor, or the trial court, all of whom observed Davis's behavior at trial, that Davis appeared unable to understand the proceedings. See id. Davis's counsel did not request a competency hearing. The trial court did not err in failing to sua sponte hold a competency hearing. Davis's due process rights were not violated. We overrule issues one and two.
ISSUE THREE
In issue three, Davis contends the evidence is legally insufficient to support the verdict. The jury found he was guilty of possession of cocaine. When an accused is charged with unlawful possession of cocaine, the State's burden is to prove (1) the defendant exercised actual care, custody, control, or management over the contraband, and (2) the accused knew the object he possessed was contraband. See Tex. Health Safety Code Ann. §§ 481.002(38), 481.102(3)(D), 481.115(b) (West 2010); see also Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). Davis challenges the second element and argues he did not possess the controlled substance "intentionally or knowingly." He contends that the fact that cocaine was in the driver's seat of the vehicle he was driving does not prove he knew the substance was cocaine or knew he was in possession of it. Officer Hollier was patrolling in a high-crime area around 3 a.m. and stopped a vehicle for a traffic violation. Hollier testified that as he approached the vehicle, he could see that the driver "was just constantly moving inside the vehicle; and as I got to the side of the vehicle, I could see that he was inside of his jacket pockets and the inside of his pants pockets." No one else was in the vehicle. Hollier testified Davis was "extremely nervous." When Hollier asked Davis a question, Davis would not look at Hollier. Davis would look away into the inside of the vehicle. Hollier testified he placed Davis under arrest for not having a valid driver's license. The officer described Davis's manner of speech as follows: "He mumbled. I could barely hear what he was saying. He wouldn't open his mouth very much." Although he had not seen Davis put anything into his mouth, Hollier thought Davis was hiding something inside it. The officer testified that, based on his law enforcement experience, the mouth is one of the more popular places to hide narcotics. Hollier repeatedly asked Davis to open his mouth and spit out the contents, but Davis closed his mouth completely and started to swallow what was in his mouth. Believing Davis was destroying the narcotics, Hollier grabbed Davis's mouth and told Davis to spit out the contents. While Hollier was trying to pry open Davis's mouth, Davis "began wrestling" with Hollier, grabbed him, and "pushed [Hollier] into the car." Once the officers subdued, handcuffed, and arrested Davis, they searched him and the vehicle. Officers found a small rock of crack cocaine in plain view on the driver's seat. The substance field tested as crack cocaine, and the lab later confirmed it was cocaine. Hollier indicated he did not find any drug paraphernalia with the crack cocaine. Concerned that Davis's swallowing the contents could result in a fatal overdose, Hollier called E.M.S. The emergency service arrived on the scene and examined Davis. Later, an officer transported Davis to Renaissance Hospital. After Davis was medically cleared to leave the hospital, he was taken to the police station. Hollier testified that at the police station, Davis began showing common symptoms of a cocaine overdose. He was sweating profusely, shaking, grinding his teeth, yelling, and screaming. The officers summoned E.M.S. again and E.M.S. took Davis to St. Mary's Hospital. St. Mary's records state the diagnosis as "crack ingested." Under psychiatric assessment, the record states, "Patient Behavior Aggressive, Combative, Uncooperative; Speech Pattern Unclear. . . ." Tests revealed that Davis tested positive for benzodiazepines, cocaine, and cannabinoids (marijuana). Officer McCurley testified he came to the scene to assist Officer Hollier. He confirmed that Hollier had difficulty taking Davis into custody. Hollier told Davis to "[s]pit it out, [s]pit it out. Open your mouth." McCurley testified that, based on his experience, "it was more than likely going to be drug related. I've had several occasions of people trying to eat narcotics." Davis "kind of mumble[d]; . . . he just barely opened his mouth." McCurley explained that for Davis's safety, paramedics were called. After E.M.S. cleared Davis, McCurley transported Davis to Renaissance Hospital. McCurley testified the substance was still in Davis's mouth at the hospital. Officer McCurley told Davis that the substance in his mouth was dangerous and urged him to spit it out. Ultimately, Davis complied. Davis was then released from the hospital. After the officers brought Davis back to the police station, Davis "was hollering and was, like, tapping his feet really fast on the ground just nonstop . . . and then he just started immediately sweating profusely. . . . I could . . . see his pulse . . . pounding through his neck." Speaking of Satan, Davis was making bizarre comments. McCurley testified that, based on his experience, he believed Davis's conduct resulted from the effects of crack cocaine. Like Hollier, McCurly stated that Davis was later brought to St. Mary's Hospital. There Davis tested positive for cocaine, and it was confirmed that he had eaten crack cocaine. McCurley testified that the substance found in Davis's vehicle field-tested positive for cocaine. The forensic scientist confirmed the substance was cocaine. "Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control." Tex. Penal Code Ann. § 6.01(b) (West 2003). Not only must a person engage voluntarily in the prohibited conduct, but he must also engage in the conduct with the culpable mental state that the definition of the offense requires. See Tex. Penal Code Ann. § 6.01(a) (West 2003); Moss v. State, 850 S.W.2d 788, 795 (Tex. App.-Houston [14th Dist.] 1993, pet. ref'd). Possession of contraband may be proved through either direct or circumstantial evidence. See Poindexter, 153 S.W.3d at 405-06; Rice v. State, 195 S.W.3d 876, 881 (Tex. App.-Dallas 2006, pet. ref'd) (stating jury may infer knowing or intentional possession of contraband.). Whether direct or circumstantial, the evidence must show that a defendant's connection to the drug was more than fortuitous. Poindexter, 153 S.W.3d at 405-06. Some factors that may circumstantially establish the legal sufficiency of the evidence to prove a knowing possession are the following:(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 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); Williams v. State, 309 S.W.3d 124, 128 (Tex. App.-Texarkana 2010, pet. ref'd). "The State's evidence must show facts and circumstances that, viewed in the totality of the circumstances, indicate the defendant's knowledge and control over the drugs, but the evidence need not be so strong that it excludes every other outstanding reasonable hypothesis except the defendant's guilt." Gregory v. State, 159 S.W.3d 254, 260 (Tex. App.-Beaumont 2005, pet. ref'd). The jury was free to believe all, some, or none of the testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). In a legal sufficiency review, we view the evidence in the light most favorable to the verdict and 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, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Evidence in a knowing possession of contraband case must amount to more than mere conjecture or mere theorizing or guessing about the possible meaning of facts and evidence presented. See Dickey v. State, 693 S.W.2d 386, 389-90 (Tex. Crim. App. 1984); see also Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007) (A conclusion reached by speculation is not sufficiently based on the evidence to support a finding of guilt beyond a reasonable doubt.). Here, the record reveals that Davis was present when the officers searched the car. The contraband was in plain view on the vehicle's driver's seat, and Davis was the driver and sole occupant. He was in close proximity to the contraband, and it was easily accessible to him. The substance on the vehicle's seat testified positive for cocaine. There was evidence Davis made furtive gestures after the police officer activated his lights and attempted to stop the vehicle. Davis refused, upon repeated demands, to open his mouth and spit the contents out. He showed symptoms of a drug overdose at the police station. Hospital records reveal that Davis testified positive for cocaine and other drugs. Davis contends that it is conjecture that he had anything in his mouth, and, if he did, it is conjecture that this substance was cocaine. Based on the officer's testimony, the jury was free to conclude that Davis had something in his mouth. The jury was free to infer that — given the fact that the substance in the seat was found to be cocaine — the substance in his mouth was also cocaine. Davis further asserts that "the [S]tate attempted to bootstrap this conjecture onto the cocaine found in the driver's seat of the vehicle to show [he] possessed this cocaine intentionally or knowingly." The officers testified that Davis would not, upon repeated urging, open his mouth or spit the substance out at the scene of the stop. It could be inferred that Davis's adamant refusal to spit or take the substance out of his mouth constituted knowing possession of cocaine, and that the cocaine in Davis's mouth was connected to the presence of the cocaine on the driver's seat. Moreover, even if Davis had nothing in his mouth, there is legally sufficient evidence of his knowing possession of the cocaine on the driver's seat. "It is . . . not the number of links that is dispositive, but rather the logical force of all of the evidence, direct and circumstantial." Evans, 202 S.W.3d at 162. The logical force of the combined pieces of circumstantial evidence in this case, coupled with reasonable inferences therefrom, is sufficient to establish beyond a reasonable doubt that Davis knew that the object he possessed was contraband. Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt all of the essential elements of possession of a controlled substance. We overrule issue three issue. The judgment is affirmed. AFFIRMED.