Opinion
No. 05-07-01545-CR
Opinion filed July 29, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-82673-06.
Before Chief Justice THOMAS and Justices MORRIS and FRANCIS. Opinion By Chief Justice THOMAS.
OPINION
Michael Dwayne Jeter appeals his conviction for possession of a controlled substance. A jury convicted appellant and assessed punishment at eight years' imprisonment. In five points of error, appellant challenges the legal and factual sufficiency of the evidence to support the jury's verdict, asserts error in the selection of the jury and the jury instructions, and complains the trial court should have allowed him to have the counsel of his choice to represent him. We affirm the trial court's judgment.
Background
On May 1, 2006, Officer Michael Best of the McKinney Police Department saw appellant's vehicle parked in a roadway and surrounded by eight to twelve people. As the officer pulled closer, all of the people around the car scattered. Officer Best followed the vehicle until it made a "rolling stop" at a stop sign. The officer arrested appellant for failing to come to a complete stop and for driving without insurance. During a search of the vehicle incident to arrest, police found a Ziploc bag containing smaller baggies of crack cocaine wedged between the driver's seat and the floorboard. Appellant was indicted for possession with intent to deliver a controlled substance. The State gave notice of intent to use prior convictions for enhancement. Appellant pleaded not guilty before a jury and was subsequently convicted of the lesser included offense of possession of a controlled substance. The jury found two enhancement paragraphs to be true and assessed punishment at eight years' imprisonment.Sufficiency of the Evidence
In his fourth and fifth issues, appellant contends the evidence is legally and factually insufficient to support the jury's verdict. When reviewing challenges to the legal sufficiency of the evidence, we consider all the evidence in a light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Obigbo v. State, 6 S.W.3d 299, 304 (Tex.App.-Dallas 1999, no pet.). In a factual sufficiency review, we view all the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict or that the verdict seems clearly wrong or manifestly unjust. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (2007) (citing Watson, 204 S.W.3d at 414-15). In examining a factual sufficiency challenge, we are permitted to substitute our judgment for the jury's when considering weight and credibility of the evidence only "to a very limited degree." Id. at 625 (explaining factual sufficiency jurisprudence still requires appellate court to afford "due deference" to fact finder's determinations). To establish appellant had knowing possession of a controlled substance, the State had to prove appellant exercised actual care, custody, control, or management over the drugs and that he knew the substances were contraband. Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex.Crim.App. 2005). "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.'" Id. (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995)). In determining whether sufficient evidence links the appellant to the contraband, the appellate court may consider a variety of factors, including: (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). Circumstantial evidence may establish sufficient links. See Frierson v. State, 839 S.W.2d 841, 849 (Tex.App.-Dallas 1992, pet. ref'd) (court can examine circumstantial factors to determine if sufficient affirmative links exist). Appellant argues any one of the eight to twelve people standing around the car could have been the possessor of the drugs found in the car. He argues "it would be impossible for the trier of fact to identify Appellant as possessing a controlled substance." The evidence also showed, however, that appellant was the driver and sole occupant of the car. The cocaine was found in the front seat of the car, wedged between the driver's seat and the floorboard. The cocaine was in plain view when the driver's door was opened. The officer testified that after he stopped the car, "I observed the driver open the door, quickly exit the door, the driver's door of the vehicle, shut the door behind him and start walking towards me." Then when asked for proof of insurance, appellant first walked to the driver's side door, then turned around and went to the passenger side door instead and entered the car through the open passenger window. Appellant did not have proof of insurance. The officer then arrested appellant and searched the car incident to the arrest. The car was locked; the officer retrieved the keys through the open window. He unlocked the car, searched the passenger side, and moved around the vehicle. As soon as he opened the driver's door, he saw the bag containing crack cocaine. When appellant realized the officer was going to search the front driver's area of the car, he began screaming from the back of the patrol car stating the officer could not search the vehicle, and kicking the floorboard. From this evidence, a rational jury could have concluded beyond a reasonable doubt that appellant exercised actual care, custody, control, or management over the drugs and he knew the substances were contraband. See Poindexter, 153 S.W.3d at 405. We cannot say the great weight and preponderance of the evidence contradicts the jury's verdict or that the verdict seems clearly wrong or manifestly unjust. See Marshall, 210 S.W.3d at 625. We overrule appellant's fourth and fifth issues.Jury Selection
In his first issue, appellant contends the trial judge erred in failing to sustain his Batson challenge. In reviewing a challenge to the selection of the jury under Batson v. Kentucky, 476 U.S. 79, 89, 106 (1986), we reverse only if we determine the trial court's resolution of the issue was clearly erroneous. Watkins v. State, 245 S.W.3d 444, 447-48 (Tex.Crim.App.), cert. denied, 129 S.Ct. 92 (2008). As the court explained in Watkins, "a reviewing court should examine a trial court's conclusion that a facially race-neutral explanation for a peremptory challenge is genuine, rather than a pretext, with great deference, reversing only when that conclusion is, in view of the record as a whole, clearly erroneous." Id. To challenge the State's use of peremptory strikes under Batson, a defendant must first make a prima facie showing that the State exercised peremptory strikes on an impermissible basis. Id. at 447. Once a defendant makes a prima facie showing of purposeful discrimination, the State must provide a race or gender neutral explanation for striking the prospective juror in question. Miller-El v. Dretke, 545 U.S. 231, 239 (2005); Herron v. State, 86 S.W.3d 621, 630 (Tex.Crim.App. 2002). Unless a discriminatory intent is "inherent," the explanation will be deemed race or gender neutral. See Hernandez v. New York, 500 U.S. 352, 360 (1991). If the State provides a race or gender neutral explanation for its strikes, the defendant must rebut the State's explanation or show that the explanation was merely a sham or pretext. See Bausley v. State, 997 S.W.2d 313, 316 (Tex.App.-Dallas 1999, pet. ref'd). To meet this burden, the defendant may call witnesses and introduce evidence just as in any other evidentiary hearing. Id. The defendant has the ultimate burden of persuasion to establish that the allegations of purposeful discrimination are true. Id. At this third step, the persuasiveness of the justification becomes relevant. See Purkett v. Elem, 514 U.S. 765, 768 (1995); see also Watkins, 245 S.W.3d at 447. This step "requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it." Miller-El, 545 U.S. at 251-52. On appeal, the trial judge's decision on the issue of discriminatory intent is given great deference because the decision depends on assessing the credibility and the content of the State's explanation and all other relevant facts and circumstances. Alexander v. State, 866 S.W.2d 1, 8 (Tex.Crim.App. 1993). After the prosecutor struck jurors 22 and 24, appellant's counsel made a Batson challenge, stating that jurors 22 and 24 were the only African-Americans on the panel. The prosecutor responded that juror 22 was argumentative:MR. DOBIYANSKI: Judge, number 22 on the panel, when I asked her questions, she threw — if I recall correctly, she threw two or three scenarios back to me and kind of challenged the scenario that I was trying to make the points on factually and-
THE COURT: It had to do with possession, correct?
MR. DOBIYANSKI: I believe so, judge. Yes, sir, possession and then delivery, how that might be constructive delivery and then she threw the example back at me that she didn't think they were and my interpretation and my thoughts on that were that she was throwing challenges back to me in regards to things not being — not being delivery or constructive delivery or even possession, so I struck her.As to juror 24, the prosecutor stated:
[H]e said a police officer . . . will stop a black man driving a car for no reason other than he is a black man. Whether that's true or not doesn't matter to me. It's the fact that he holds that belief in his mind that I don't believe he can be fair to the State of Texas when we have potential issues in that area.Appellant's counsel argued jurors 22 and 24 were the only African-Americans on the jury, and both jurors were merely giving a reasonable response to questions the prosecutor posed; therefore, the prosecutor's stated reasons were pretext. The prosecutor then noted juror 24's son was recently convicted of aggravated robbery, and repeated his response that juror 22 was challenging him and arguing with him:
And number 22, the answers provided were in my interpretation and in speaking with her were more of a challenge because she also talked about — she gave us a long-winded example of something that she didn't think was right and it really didn't have much to do with what I was talking about at the time and then she gave another example of when I was talking about the newspaper man throwing the newspaper that if it goes to somebody else, then she's not really in possession of it and so on. So her interpretations of my examples and the example that she threw back at me, I don't think were good for me.The trial judge made a finding the challenges were race-neutral, and denied the Batson challenge. Appellant did not establish by a preponderance of the evidence that his allegations of purposeful discrimination were true. See Bausley, 997 S.W.2d at 316. While he disagreed with the prosecutor's reasons for the strikes, appellant did not offer evidence that the prosecutor's race-neutral reasons were not true. The record shows the jurors made the statements the prosecutor attributed to them. Courts have held similar reasons for strikes to be race-neutral. In Johnson v. State, 68 S.W.3d 644, 649 (Tex.Crim.App. 2002), the prospective juror made both negative and positive comments about police officers. The court concluded, "the State was entitled to believe, based upon the negative feedback that she gave, that her presence on the jury would be adverse to the State's interests," despite the fact that she gave some positive comments as well. Id. In Smith v. State, 814 S.W.2d 858, 862 (Tex.App.-Amarillo 1991, no pet.), the court concluded the prosecutor's reasons were race-neutral where the potential juror was "argumentative and hostile," noting, "[t]he fact that he was argumentative and hostile led the State to the legitimate conclusion that Coffey would not be fair and impartial and would be inclined not to meaningfully deliberate with his fellow jurors." See also Francis v. State, 909 S.W.2d 158, 164 (Tex.App.-Houston [14th Dist.] 1995, no pet.) (perceived hostility toward a prosecutor can be non-discriminatory reason for exercising peremptory challenge against prospective juror). And, as we have noted, "[t]he use of peremptory strikes on prospective jurors who have relatives who have been convicted or charged with a criminal offense is legitimate and racially neutral." Dorsey v. State, 940 S.W.2d 169, 175 (Tex.App.-Dallas 1996, pet. ref'd). Appellant did not rebut the State's explanation for its strikes. See id. at 176. We conclude the record supports the trial judge's finding that the State's strikes of jurors 22 and 24 were legitimate and racially neutral. We overrule appellant's first issue.
Jury Charge
In his third issue, appellant complains the trial judge erred by instructing the jury regarding parole law, and this error caused harm. Review of appellant's complaint regarding the jury charge involves a two-step process: (1) the determination of whether an error actually exists in the jury charge; and (2) an evaluation of whether sufficient harm resulted from the error. See Ngo v. State, 175 S.W.3d 738, 743-44 (Tex.Crim.App. 2005); see also Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006) (review of charge on appeal; judgment shall not be reversed unless error was calculated to injure rights of defendant or unless defendant has not had fair and impartial trial). The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection. Ngo, 175 S.W.3d at 743. Jury charge error requires reversal when the defendant has properly objected to the charge and we find "some harm" to his rights. Id. (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985)). When the defendant fails to object or states that he has no objection to the charge, we will not reverse for jury-charge error unless the record shows "egregious harm" to the defendant. Ngo, 175 S.W.3d at 743-44. Before the charge was read to the jury, appellant's counsel made the following objection:The objections have to do with the paragraphs and the paragraph — I think there's several of them about parole, an application of parole law does not apply to this defendant and other defendants and we're just objecting to those, Your Honor. What I ask in — my submission would be we submit the proposed charge, however, that those paragraphs be eliminated.The trial judge overruled the objection, and read the charge to the jury. During appellant's counsel's closing argument, just as he began to address the subject of parole, the trial judge asked counsel to approach the bench. After a bench conference, the trial judge stated:
Ladies and gentlemen, in the jury charge, I — there was a mistake that was made as far as the parole law. I've taken that paragraph out and it'll say so in the juror instructions. So you are not to consider the parole law or how it's applied in any manner whatsoever when you begin your deliberations.Appellant's counsel then concluded his argument, noting "[t]hat's what I was going to point out, so I will leave that alone because it was read to you and I wanted to point that out, and the Judge is correct. This is not a case that will be considered as parole issues. The law doesn't allow that." The attorney for the State also told the jury it could not "consider parole." In his brief, appellant quotes five paragraphs from the punishment charge contained in the clerk's record. These five paragraphs quote article 37.07, section 4 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4 (Vernon Supp. 2008). This charge is signed by the judge and the presiding juror. There is no other version of the punishment charge in the record, and the reporter's record notes only that the charge was read to the jury. Appellant's complaint about these quoted paragraphs is not entirely clear. He cites no authority for the proposition that they were erroneously included, or that they contained erroneous language, and the State in fact argues the charge contained in the clerk's record is the corrected version. Appellant does contend his counsel had insufficient time to address the change in the charge, and the incorrect charge had "already sunk in with the jury." He points to a question submitted to the judge during the jury's deliberations, "do we have the option to return a verdict for less five years under 2 option?" He argues the jury "sought to accomplish what they thought would produce a 4 year sentence by doubling that sentence to 8 years, based on the erroneous jury charge given by the Court." The charge, however, clearly states, "You are not to consider the manner in which the parole law may be applied to this particular defendant." Absent evidence to the contrary, we presume the jury followed the law provided by the charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex.Crim.App. 1996). Appellant has not offered any evidence to rebut this presumption. Appellant did not file a motion for new trial alleging juror misconduct or obtain a hearing to adduce facts not in the record. As in Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App. 1998), the only evidence that the jury considered parole is the jury note. The Colburn court concluded, "[e]ven if the note constitutes evidence the jury discussed parole at a preliminary point, we presume they followed the court's instructions and thereafter did not consider it in reaching their verdict." Id. (emphasis omitted); see also Graham v. State, 96 S.W.3d 658, 661 (Tex.App.-Texarkana 2003, pet. ref'd) (jury's note alone insufficient to rebut presumption that jurors followed instruction not to consider parole in deliberations and final assessment of punishment). Further, appellant's counsel did not seek additional time to address the correction to the charge in his argument, and does not identify any argument he was unable to make in the time allotted. We overrule appellant's third issue.