Opinion
No. 05-10-00433-CR
Opinion Filed July 20, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 354th Judicial District Court Hunt County, Texas, Trial Court Cause No. 26250.
Before Justices O'NEILL, FRANCIS, and MYERS.
OPINION
A jury convicted appellant Michael Glen Roberts of possession of methamphetamine in the amount of one gram or more but less than four grams and sentenced him to twenty-five years' imprisonment. On appeal, he challenges whether (1) the evidence is sufficient to support his conviction; (2) the trial court erred by admitting extraneous offenses and instructing the jury it could consider the extraneous offenses; (3) the State improperly argued the punishment range during closing; and (4) trial counsel was ineffective. We reverse the trial court's judgment and remand for a new trial.
Factual Background
On the morning of April 26, 2009, Officer Brian Alford, a patrol lieutenant with the Sheriff's Department for Hunt County, was dispatched to the Country Inn motel in Campbell, Texas for an attempted break-in in room number ten. When Officer Alford arrived, Victor Carerra, the owner, told him he saw a man with a mohawk enter room number twelve. Carerra believed the man might have been involved in the break-in. The man with the mohawk was later identified as Michael Morris. When Officer Alford knocked on the door to room twelve, appellant answered. Morris and two women named Shelby Williamson and Erika Gossett were also present. Officer Alford separated the individuals to question them. He received inconsistent stories. Another officer on the scene obtained permission from Gossett to search the motel room. The evidence was conflicting on whether appellant also provided permission to search the motel room. Similarly, the evidence was conflicting as to whether appellant was renting the motel room. Based on the permission to search, Officer Alford entered the motel room. The first thing he found was a backpack located by the south wall. Inside the backpack, he found a bag of unused syringes, several small baggies, two digital scales, and a small blue bag, which contained a spoon, a syringe, and two red straws. Appellant admitted the backpack and its contents belonged to him. As Officer Alford continued to search along the south wall, he found a toolbox and a rolled up futon mattress in the corner. Inside the futon mattress, he found a small prescription bottle wrapped with black electrical tape. The bottle held four plastic baggies containing methamphetamine and five empty baggies containing a small amount of residue. The total amount of the methamphetamine was determined to be 2.33 grams. Officer Alford also recovered two small bags of marijuana. The police arrested all the individuals at the scene. Gossett was charged with possession of methamphetamine, and Morris was charged with possession of drug paraphernalia. The State did not bring any charges against Williamson. Appellant was charged with possession with intent to deliver methamphetamine in an amount of one gram or more but less than four grams. He pleaded not guilty. The jury convicted him of the lesser-included offense of possession of the methamphetamine. Because the jury found the enhancements true, the punishment range was twenty-five to ninety-nine years' or life imprisonment. The jury sentenced him to twenty-five years in prison. This appeal followed.Sufficiency of the Evidence
In his first two issues, appellant challenges the legal and factual sufficiency of the evidence regarding his possession of methamphetamine. He argues the drugs were not in plain view, and although he was in close proximity to where officers found the contraband, no evidence indicates he knew drugs were in the motel room. Further, he argues evidence indicates he had limited possession of the motel room and the drugs belonged to Gossett, who was also staying in the room. The State responds viewing the evidence in the light most favorable to the verdict, the jury could reasonably conclude appellant possessed the methamphetamine. A successful legal sufficiency challenge will result in the rendition of an acquittal by the reviewing court; therefore, we address appellant's legal sufficiency rendition point before we address his remand points. See Aldrich v. State, 296 S.W.3d 225, 230 (Tex. App.-Fort Worth 2009, pet. ref'd). In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a 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). We defer to the jury's credibility and weight determinations because it is the sole judge of the witnesses' credibility and the weight to be given their testimony. Id. at 326. A person commits an offense if he knowingly or intentionally possesses methamphetamine in an amount of one gram or more but less than four grams. See Tex. Health Safety Code Ann. §§ 481.102(6), .115(a) (West 2010). To prove the unlawful-possession-of-a-controlled-substance element of the charged offense, the State was required to prove appellant (1) exercised control, management, or care over the methamphetamine; and (2) knew the substance possessed was contraband. See Blackman v. State, PD-0109-10, 2011 WL 1376732, at *5 (Tex. Crim. App. Apr. 13, 2011); see also Tex. Health Safety Code Ann. § 481.002(38) (West 2010) (defining "possession" to mean actual care, custody, control, or management). Moreover, because appellant was not in exclusive possession of the motel room, the State was also required to prove beyond a reasonable doubt that appellant's connection to the contraband "was more than just fortuitous," which protects the innocent bystander from conviction based solely upon his fortuitous proximity to someone else's drugs. Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005). Thus, mere presence at the location where drugs are found is insufficient, by itself, to establish possession. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). However, presence or proximity, when combined with other evidence, either direct or circumstantial, may well be sufficient to establish that element beyond a reasonable doubt. Id. In determining whether sufficient evidence exists to link appellant to the drugs, we must examine factors such as (1) whether he was present when the drugs were found; (2) whether the drugs were in plain view; (3) whether the drugs were in proximity to and accessible to him; (4) whether he was under the influence of drugs when arrested; (5) whether he possessed other contraband or drug paraphernalia; (6) whether he made incriminating statements when arrested; (7) whether he attempted to flee; (8) whether he made furtive gestures; (9) whether there was an odor of drugs; (10) whether he owned or had the right to possess the place where the drugs were found; (11) whether the place the drugs were found was enclosed; (12) the amount of drugs found; (13) whether he possessed weapons; and (14) whether he possessed a large amount of cash. Wingfield v. State, 197 S.W.3d 922, 927 (Tex. App.-Dallas 2006, no pet.). There is no set formula of facts that dictates a finding of links sufficient to support an inference of knowing possession of contraband. Id. at 928. It is the "logical force" or degree of the factors, not the number of factors present, that tends to link the defendant to the contraband. Id. Here, the evidence shows appellant, an admitted methamphetamine addict, was staying in a motel where narcotics users and dealers were known to stay. Appellant admitted the backpack, which contained drug paraphernalia used with methamphetamine and was located in close proximity to where Officer Alford found the drugs, was his. Based on information Officer Alford received from talking to the individuals on the scene, Officer Alford believed appellant was staying in the room. Further, although Officer Alford could not remember talking directly to appellant, he noted in his report that appellant was renting the room. Based on his observations and talking to the other individuals, Officer Alford believed all the items along the south wall of the motel room, which included the backpack, a toolbox, and the futon where he found the drugs, belonged to appellant. Accordingly, the evidence reveals five of the links courts consider when determining whether a person is in possession of contraband rather than having a mere fortuitous connection: (1) appellant was present in the motel room when Officer Alford found the drugs; (2) the drugs were close in proximity to appellant's backpack; (3) appellant possessed other drug paraphernalia specifically used with methamphetamine; (4) the jury was free to believe Officer Alford's testimony that appellant had rented the room where the drugs were found or at the very least, he had the right to stay there; and (5) the drugs were found in an enclosed area that appellant had access to. Thus, a reasonable jury could infer a known drug addict, staying in a motel known for drug activity, was aware drugs were in the room. We acknowledge that mere presence of an accused at a place where contraband is found, even in close proximity thereto, does not itself justify a finding of possession. Id. at 695. However, under these facts, we conclude the "logical force" of the circumstantial evidence, when viewed in the light most favorable to the verdict, constituted sufficient evidence that appellant had actual care, custody, control, or management of the methamphetamine found in the motel room. See, e.g., Evans, 202 S.W.3d at 166. The jury was not required to believe appellant's contrary testimony denying knowledge of the drugs. Jackson, 443 U.S. at 326. Accordingly, we overrule appellant's first and second issues.Admissibility of Prior Convictions
In his third issue, appellant asserts the trial court abused its discretion by admitting evidence of two prior drug convictions during the guilt-innocence phase because the convictions were remote and more prejudicial than probative. The State responds appellant received proper notice of its intent to use the extraneous offenses. During the State's cross examination of appellant at the guilt innocence phase, the trial court held a hearing outside the presence of the jury to consider whether to admit evidence of appellant's prior convictions, which included the following: (1) burglary of a vehicle in 1987; (2) burglary of a building in 1987; (3) possession of cocaine in 1989; (4) possession of methamphetamine in 1993; and (5) possession of methamphetamine in 1999. Appellant objected, arguing the evidence was more prejudicial than probative and irrelevant because the convictions were over ten years old. The State responded appellant received an eight-year sentence on the 1999 possession case and a twelve-year sentence on the 1993 possession case; therefore, assuming he served his full sentences, the two prior convictions fell within ten years of trial. See Tex. R. Evid. 609(b) ("Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date,. . . ."). The trial court admitted the evidence of appellant's 1993 and 1999 convictions for possession of methamphetamine for impeachment purposes. We first note the State has failed to respond to appellant's argument regarding whether the admission of the prior convictions was more prejudicial than probative and focuses instead on the fact appellant received proper notice of the State's intent to use the prior offenses. Appellant did not raise an issue regarding failure to receive proper notice. Accordingly, we will analyze appellant's issue as presented, which is to determine if the trial court improperly admitted the prior convictions. We will not reverse the trial court's decision regarding the admissibility of evidence of prior convictions unless a clear abuse of discretion is shown. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). If the trial court's decision was within the zone of reasonable disagreement, we will not disturb it. Id. Generally, when a defendant testifies, prior convictions for felonies or misdemeanors involving moral turpitude may be admitted into evidence for impeachment purposes. Tex. R. Evid. 609(a). The trial judge should conduct a balancing test to determine if the probative value of the prior conviction is outweighed by its prejudicial effect. Id. In a standard rule 609(a) balancing analysis, the following factors should be considered: (1) the impeachment value of the previous convictions; (2) the temporal proximity of the convictions to the crime on trial; (3) the similarity of the prior offenses and the present offense; (4) the importance of the defendant's testimony; and (5) the importance of the credibility issue. Theus, 845 S.W.2d at 880. However, the rules of evidence provide a separate analysis if the conviction is more than ten years old. Tex. R. Evid. 609(b). Such a conviction is not admissible "unless the court determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." Id. Accordingly, the drafters of the rules provided heightened protection against prejudice when a conviction is statutorily deemed remote. The State must demonstrate that the probative value "substantially outweighs," not merely "outweighs," the prejudicial effect. Id. In instances in which remoteness is an issue, we look exclusively to the strictures of rule 609(b), not to the multiple Theus factors. Hernandez v. State, 976 S.W.2d 753, 755 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd); see also Dale v. State, 90 S.W.3d 826, 830 (Tex. App.-San Antonio 2002, pet. ref'd). Here, the trial court admitted a 1993 and a 1999 conviction for possession of methamphetamine. Although the State summarily argued to the trial court that, assuming appellant served his full sentences, the two convictions fell within ten years of trial and were not remote, the record is silent as to the dates appellant was released from confinement for his prior offenses. Without such evidence, the trial court erred by accepting the State's argument. When the record is silent as to release dates, we must look at the dates of each conviction offered. Morris v. State, 67 S.W.3d 257, 263 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd). As previously stated, appellant was convicted in 1993 and 1999. He took the stand to testify in his own defense on March 25, 2010. Accordingly, both of his prior convictions are outside the ten-year window and are remote under rule 609(b). We recognize courts have historically held that even when a prior conviction is more than ten years old, subsequent convictions for felonies or misdemeanors of moral turpitude remove the taint of remoteness from the prior convictions. See Jackson v. State, 11 S.W.3d 336, 339 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd). However, the record does not indicate that appellant had any convictions after 1999 to remove the taint of remoteness. Therefore, because appellant's prior convictions are more than ten years old, they were inadmissible unless the State demonstrated that, in the context of this prosecution, the probative value of the evidence substantially outweighed its prejudicial effect. Hernandez, 976 S.W.2d at 755; see Butler v. State, 890 S.W.2d 951, 955 (Tex. App.-Waco 1995, pet. ref'd) (noting prior conviction, which occurred more than ten years prior to trial, was presumed to be too remote to be admissible). The State argued the prior offenses were relevant because by taking the stand, appellant put his credibility on the line. However, looking exclusively to the strictures of rule 609(b) and given the remoteness of the two prior convictions, which were almost identical to the offense appellant was on trial for, we cannot say the State met its burden to prove their admissibility. See Theus, 845 S.W.2d at 880 (holding burden of proof is on party urging admission of prior conviction for impeachment); see also Hernandez, 976 S.W.2d at 755 (when remoteness is an issue, "we look exclusively to the strictures of 609(b)"). Similar to Hernandez, we conclude this record does not demonstrate specific facts and circumstances showing that the probative value of the prior convictions substantially outweighs their prejudicial effect, as required by rule 609(b). Therefore, the trial court abused its discretion by admitting evidence of appellant's 1993 and 1999 convictions for possession of methamphetamine. Next, we review the record to determine whether the error affected appellant's substantial rights. Tex. R. App. P. 44.2(b); Jackson, 11 S.W.3d at 341; Hernandez, 976 S.W.2d at 756. Substantial rights are not affected by the erroneous admission of evidence "if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Delapaz v. State, 228 S.W.3d 183, 202 (Tex. App.-Dallas 2007, pet. ref'd). However, if the reviewing court harbors "grave doubt" that an error did not affect the outcome, the court must treat the error as if it did. Id. In assessing the likelihood that the jury's decision was adversely affected by the error, the appellate court should consider the entire record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, and the character of the alleged error and how it might be considered in connection with the other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). The reviewing court may also consider the jury instructions, the State's theory and any defensive theories, closing arguments and even voir dire, if applicable. Id. We may also consider whether the State emphasized the error. Id. Under these facts, the most problematic aspect of the admission of the prior convictions for possession of methamphetamine is that they are almost identical to appellant's present charge for possession with intent to deliver methamphetamine and are identical to the offense for which the jury chose to convict appellant. A clear danger exists that the improper admission of similar offenses led the jury to convict based on past conduct rather than the facts of the charged offense in this case. See, e.g., Butler, 890 S.W.2d at 956 (holding that once jury heard appellant had been previously convicted of assaulting a child in 1980, the court could not say beyond a reasonable doubt the erroneous admission of that fact did not contribute to his conviction for a similar offense involving his son). This is particularly true here because the State's case rested on the jury believing Officer Alford's testimony and not believing appellant's testimony. When the jury heard appellant had a history of drug-related offenses involving methamphetamine, it is likely the jury found appellant guilty based on character conformity and did not use the prior offenses solely on the issue of credibility. Further, the jury received no limiting instruction when the trial court admitted the prior convictions. Moreover, the trial court incorrectly instructed the jury in the charge regarding how it could consider the evidence. Rather than giving an instruction under rule 609, the trial court provided the following rule 404(b) instruction:Evidence may have been introduced in this case regarding the Defendant having committed other crimes, wrongs, or acts. You are instructed that you cannot consider any such evidence to prove the character of the Defendant or that he acted in conformity therewith. You can consider any such evidence for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. You cannot consider the testimony for any purpose unless you find and believe beyond a reasonable doubt, the Defendant committed such other acts, if any were committed.Thus, the jury was never properly instructed on how to use the evidence of appellant's prior convictions. Finally, during closing the State emphasized appellant's prior convictions in two separate arguments. First, the State said:
You'll remember it, because I said, Your honor, Brian Alford's credibility is not in dispute, and he said, I am putting it in dispute. So that's certainly what the record reflects.
So you know, you can call Brian Alford a liar. You can call Julie Morrtssey a liar. He can call Kenneth Evans a liar. He can call Kaye Davis a liar without her even being here. And maybe that's effective to call the law enforcement individuals in our County-who work for our County liars. Maybe that's-maybe that's a tactic. You know the best one, really, came from the defendant himself. The Defendant would have you believe that, yes, I've used methamphetamine since at least 1993. I've used it a bunch when I'm not in prison. I've used it a bunch-I've used it a bunch [sic]. I used up until two days prior to being in that motel room. However, on this date, with those other drug users, with all that drug paraphernalia in that room where drugs are being sold and redistributed in that drug locale-on that date, I wasn't in possession of those drugs. I didn't know they were there.Then later the State argued:
I think that Defense counsel is going to stand up and say, well, you know the State of Texas is going to try to convict him because of these prior offenses. You know, and I'm not. I am going to tell you that you get to take into consideration his prior offenses for possession of methamphetamine for the purpose of judging his credibility.Folks, normal people, who are credible people, who are worthy of listening to what they say, don't commit the same offenses in two different decades, spend a lengthy prison sentence in prison for the same offense in two decades, get out and continue to do it, and then come in here and get to be judged the same as other folks. His credibility is at a lower level. He says, I didn't do it. Of course, he says he didn't do it. And why did he say that? You know, because he's facing 25 to life in this case. That's why. He understands that the stakes are higher. And that's why he didn't plead guilty in this case, because it wasn't 2 to 20. It wasn't 2 to 10. . . . Because of the similarity of the prior convictions to the current offense, the trial court's improper instruction regarding the use of the prior convictions, and the State's repeated emphasis of the prior convictions in closing by arguing "credible people . . . don't commit the same offenses" and receive lengthy sentences "for the same offense," we do not have fair assurance the error did not influence the jury. Further, even though we have found the evidence legally sufficient based on the state of the evidence presented at trial, the "nature of the evidence supporting the verdict" is not overwhelming. Accordingly, based on a review of the record, we cannot say the error had but a slight effect on the outcome of the trial. We sustain appellant's third issue. Having sustained this issue, we need not address appellant's remaining issues. See Ites v. State, 923 S.W.2d 675, 678 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd) ("We do not address the appellant's remaining points of error because they are remand points.").