Jonathan Rollins v. State

Opinion issued December 31, 2009 In The Court of Appeals For The First District of Texas NO. 01-08-00279-CR JONATHAN ROLLINS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 339th District Court Harris County, Texas Trial Court Cause No. 1144787 MEMORANDUM  OPINION A jury convicted appellant Jonathan Rollins of possession of cocaine weighing more than four grams and less than two hundred grams. See Tex. Health & Safety Code Ann. § 481.115(d) (Vernon Supp. 2009). In two enhancement paragraphs, the State alleged that Rollins had been previously convicted of possession of a controlled substance and possession with intent to deliver a controlled substance. The jury found the enhancement allegations true and assessed punishment at 25 years’ confinement. On appeal, Rollins alleges that: (1) the trial court erred by denying his motion to suppress evidence of his conversation with a police officer; (2) the trial court erred by allowing the State to use demonstrative evidence; and (3) the evidence is legally and factually insufficient to support his conviction. We modify the judgment and affirm as modified. Background On July 31, 2007, Houston Police Department Officers D. Johnson and C. Ponder, tactical police officers in a Southwest Houston division, saw Rollins drive his car into an apartment complex without using a turn signal. The officers had previously made many narcotics arrests in that apartment complex, which also harbored gun activity, and they followed Rollins’s car into the parking lot. Officers Johnson and Ponder watched a man approach Rollins’s car, speak to Rollins for a few seconds, and get into the front passenger seat of Rollins’s car. The officers checked the license plate number and learned that Rollins was driving a rental car. The rental car had been equipped with after-market, decorative spinner rims on its wheels. Officer Johnson initiated a traffic stop, based on Rollins’s failure to signal a turn. While Officer Ponder checked for outstanding warrants for Rollins and his passenger, Officer Johnson spoke to Rollins, who was standing outside the car on the driver’s side. Rollins told Officer Johnson that he had the rental car for approximately one week, though he did not rent it, and that he had installed the spinner rims. At trial, the State displayed to the jury a picture of spinner rims as demonstrative evidence. Officer Johnson testified that the picture did not depict the actual wheels on Rollins’s rental car. He also said that although he did not know the value of Rollins’s spinner rims, he believed that a set of four spinner rims would cost between $2,000 and $4,000. Officer Ponder’s search showed an outstanding arrest warrant for Rollins. Officer Ponder arrested Rollins, and the officers conducted a search of Rollins’s car. They found mail addressed to Rollins above the driver’s-side sun visor and two small plastic sandwich bags of illegal drugs hidden between the door of the gas compartment and the gasoline-tank cap. One bag contained crack cocaine, and the other contained two smaller bags of marijuana. At the scene, Officer Johnson weighed the bag containing the crack cocaine using a scale he admitted at trial was not accurate. Officer Johnson testified that the bag and its contents weighed 5.9 grams at the scene. A Houston Police Department Crime Lab chemist testified that she tested the substance in the bag and found it to be crack cocaine. She said that earlier testing by another analyst showed 4.7 grams of crack cocaine, but when she tested it five months later, it measured 4.1 grams of crack cocaine due to loss of moisture. She also testified that a plastic sandwich-sized bag usually weighs 0.9 to 1.4 grams. Officer Ponder testified that the crack cocaine found in Rollins’s car would be worth approximately $400 and the marijuana would be worth approximately $10. The jury convicted Rollins of possession of more than four grams and less than 200 grams of cocaine. Rollins pleaded not true to the two enhancement paragraphs. The jury found the enhancements to be true and sentenced Rollins to 25 years’ imprisonment. Rollins challenges the trial court’s rulings admitting testimony about the conversation he had with Officer Johnson and admitting a picture of spinner rims as demonstrative evidence. Rollins also challenges the legal and factual sufficiency of the evidence. Rollins’s Statements to Officer Johnson In his second issue, Rollins contends that the trial court erred by denying his motion to suppress statements that he made to Officer Johnson at the scene of the traffic stop. Specifically, Rollins sought to exclude his statements that he had been driving the car for approximately one week and that he had installed the spinner rims on the rental car. At trial, Rollins argued that he was in custody at the time the statements were made and the officers had not apprised of him of his Miranda rights in contravention of Code of Criminal Procedure article 38.23. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005) (“No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”); Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966). On appeal, Rollins contends that the trial court should have excluded his statements because the officers did not warn him as required by Code of Criminal Procedure article 38.22.[1] His sole argument—that he was in custody at the time the statements were made—rests on the wording of the police report, in which Officer Johnson first recorded Rollins’s arrest and then recorded his statements. Standard of Review In reviewing the trial court’s ruling on a motion to suppress evidence, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Blake v. State, 125 S.W.3d 717, 722 (Tex. App.—Houston [1st Dist.] 2003, no pet.). We give almost total deference to the trial court’s determination of historical facts that depend on credibility, while we conduct a de novo review of the trial court’s application of the law to those facts. Carmouche, 10 S.W.3d at 327. The trial court is the sole judge of the credibility of the witnesses and decides the weight to give their testimony. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). If, after a hearing on a motion to suppress, the trial court does not file findings of fact, we view the evidence in the light most favorable to the trial court’s determination, and we assume that the trial court made implicit findings of fact in support of its determination if those findings are supported by the record. State v. Gray, 158 S.W.3d 465, 467 (Tex. Crim. App. 2005). We must sustain the trial court’s ruling if it is reasonably supported by the record evidence and is correct under any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855–56 (Tex. Crim. App. 2000). Custodial Interrogation Rollins argues that there is a discrepancy between Officer Johnson’s in-court testimony and his police report, which implied that Officer Johnson arrested Rollins before the conversation in which Rollins revealed he had been driving the rental car for a week and that he had installed the spinner rims. The police report is not in the record. At a hearing outside the presence of the jury, the State explained that Officer Johnson’s police report was not written in sequential order. According to the prosecutor, Officer Johnson recorded Rollins’s arrest and then noted the conversation he had with Rollins while Officer Ponder was checking identification at the police car. Rollins’s attorney argued to the trial court that the prosecutor had previously told him that, based on her reading of the police report, the conversation occurred after the arrest. The prosecutor argued that Officer Johnson simply recorded the events out of sequential order. During the suppression hearing, Officer Johnson testified that the information in his police report appeared out of sequential order. The police report indicates that Officer Johnson arrested Rollins, and a later paragraph in the police report records the conversation Officer Johnson had with Rollins before his arrest. Officer Johnson denied that his police report stated that the conversation actually occurred after he arrested Rollins. Furthermore, Officer Johnson testified that he stopped Rollins for a traffic violation, i.e., failing to signal a turn. Officer Johnson said that he had a brief conversation with Rollins while Officer Ponder checked for outstanding warrants. Whether the statements were made while Rollins was in custody was a question of fact for the trial court. Officer Johnson’s testimony supports the trial court’s implicit finding that the statements were not the result of custodial interrogation. See Gray, 158 S.W.3d at 467. A traffic stop does not constitute “custody” for Miranda purposes. State v. Stevenson, 958 S.W.2d 824, 828 (Tex. Crim. App. 1997) (citing Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138 (1984)). Accordingly, we hold that the trial court did not err in denying Rollins’s motion to suppress the statements he made to Officer Johnson. We overrule Rollins’s second issue. Demonstrative Evidence In his third issue, Rollins challenges the trial court’s evidentiary ruling that permitted the State to use a picture of spinner rims for demonstrative purposes. At trial, Rollins objected, “Relevance, it’s not the wheels in this case.” There is no dispute that the picture shown to the jury was not a picture of the rims installed on Rollins’s rental car. On appeal, Rollins argues both that the exhibit was not relevant and that its probative value was substantially outweighed by the risk of unfair prejudice. See Tex. R. Evid. 402, 403. To preserve error for appellate review of an evidentiary ruling, a party must obtain a ruling on a timely and specific objection, and his issue on appeal must comport with his trial objection. Tex. R. App. P. 33.1; Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Because Rollins objected based only on relevance,[2] he waived his issue as to the allegedly unfairly prejudicial effect of the demonstrative evidence. See Fletcher v. State, 902 S.W.2d 165, 167 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d) (holding that appellant waived issue as to prejudicial effect of evidence by objecting only to relevance at trial). We review a trial court’s admission of demonstrative evidence for an abuse of discretion. See Simmons v. State, 622 S.W.2d 111, 113 (Tex. Crim. App. 1981); Onwukwe v. State, 186 S.W.3d 81, 84 (Tex. App.—Houston [1st Dist.] 2005, no pet.). Relevant evidence is generally admissible at trial. Tex. R. Evid. 402. Relevant evidence tends to make the existence of a fact of consequence to the determination of the case more or less probable than it would be without the evidence. Tex. R. Evid. 401. “Visual, real, or demonstrative evidence, regardless of which term is applied, is admissible upon the trial of a criminal case if it tends to solve some issue in the case and is relevant to the cause that is, if it has evidentiary value, i.e., if it sheds light on the subject at hand.” Simmons, 622 S.W.2d at 113. “[A]n article sought to be exhibited to the jury must be shown to be properly identified, as against any idea of speculation, conjecture, or presumption of what the exhibit represents.” Onwukwe, 186 S.W.3d at 84. A demonstrative exhibit is admissible if the original, if available, would have been admissible at trial. Simmons, 622 S.W.2d at 113; Onwukwe, 186 S.W.3d at 84. Demonstrative evidence is admissible “to aid the jury in understanding oral testimony adduced at trial.” Fletcher, 902 S.W.2d at 167. At trial, Rollins objected that the picture of spinner rims that the State wanted to show the jury was not relevant. Officer Johnson testified that the picture was not a photograph of Rollins’s car. Rather, Officer Johnson testified that he obtained the picture from the internet. On appeal, Rollins contends that the State offered the picture “to portray Rollins as a wealthy drug dealer who equips his vehicle with his expensive spinner rims.” The State argues that this shows that Rollins exercised the kind of control over the car needed to link him to the illegal drugs discovered near the gasoline cap. While not the ultimate issue in the case, whether Rollins exercised control over the car was relevant to the jury’s determination of whether he possessed the drugs found near the gasoline cap. The picture of the spinner rims aided the jury in understanding the police officers’ testimony about the improvements that Rollins made to the rental car he drove for approximately one week. This would be helpful to the jury by enabling them to determine if the installation of spinner rims tended to demonstrate Rollins’s control over the rental car. In addition, a photograph of the spinner rims that were actually installed on Rollins’s rental car would have been relevant for the same reason and admissible at trial. Therefore, we hold that the trial court did not abuse its discretion by admitting the picture of spinner rims for demonstrative purposes. See Simmons, 622 S.W.2d at 113; Onwukwe, 186 S.W.3d at 84. We overrule Rollins’s third issue. Sufficiency of the Evidence In his first issue, Rollins contends that the evidence is legally and factually insufficient to support his conviction for possession of cocaine weighing between four and two hundred grams. Standards of Review When evaluating the legal sufficiency of the evidence, 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006). This standard applies to both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). We do not weigh any evidence or evaluate the credibility of any witnesses, as this was the function of the trier of fact. Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead, we determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict and resolving any inconsistencies in the evidence in favor of the verdict. See Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). “When conducting a factual sufficiency review, we view all of the evidence in a neutral light.” Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 405, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong, 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. Id. In conducting a factual sufficiency review, we also must discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Roberts v. State, 221 S.W.3d 659, 665 (Tex. Crim. App. 2007). We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997). As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407. Possession of a Controlled Substance A person commits the offense of possession of a controlled substance if he intentionally or knowingly possesses cocaine or crack cocaine. Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.115(a) (Vernon Supp. 2009). “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) (Vernon 2003). Proof of the offense requires a showing that the accused (1) exercised care, control, or management over the contraband and (2) knew that he possessed contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); Edwards v. State, 178 S.W.3d 139, 143 (Tex. App.—Houston [1st Dist.] 2005, no pet.). “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 the contraband.” Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981); accord Nhem v. State, 129 S.W.3d 696, 699 (Tex. App—Houston [1st Dist.] 2004, no pet.). “Because, under our law, an accused must not only have exercised actual care, control, or custody of the substance, but must also have been conscious of his connection with it and have known what it was, evidence which affirmatively links him to it suffices for proof that he possessed it knowingly.” Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). “It is not sufficient to show the accused was merely present in the vicinity of the controlled substance.” Batiste v. State, 217 S.W.3d 74, 79–80 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Rather, the evidence must establish that the accused’s connection to the substance was more than just fortuitous. Poindexter, 153 S.W.3d at 405–06. Courts have identified a non-exhaustive list of factors that may help to link an accused to controlled substances. Nhem, 129 S.W.3d at 699. These links may include (1) the accused’s presence when a search is conducted, (2) whether the narcotics were in plain view, (3) the accused’s proximity to and the accessibility of the narcotics, (4) whether the accused was under the influence of narcotics when arrested, (5) whether the accused possessed other contraband or narcotics when arrested, (6) whether the accused made incriminating statements when arrested, (7) whether the accused attempted to flee, (8) whether the accused made furtive gestures, (9) whether there was an odor of contraband or narcotics, (10) whether other contraband or narcotic paraphernalia was present, (11) whether the accused owned or had the right to possess the place where the narcotics were found, (12) whether the place in which the narcotics were found was enclosed, (13) whether the accused was found with a large amount of cash, and (14) whether the conduct of the accused indicated a consciousness of guilt. Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006). It is not the number of links present that is important, but rather the “logical force” that they create to prove that the defendant committed the crime. Nehm, 129 S.W.3d at 699–70. In this case, the police officers discovered the cocaine hidden between the door of the gasoline compartment and the gasoline-tank cap. Rollins was the driver of the rental car in which the crack cocaine was found. Rollins told the arresting officer that he had been in possession of the rental car for about one week and that he had installed after-market spinner rims to improve the appearance of the car. Rollins was also the sole occupant of the car at the time of the traffic violation.[3] The arresting officers testified that the other man got in the car in the parking lot of the apartment complex, and he did not approach the gas compartment. While searching the vehicle, the officers found mail addressed to Rollins above the driver’s-side visor. Finally, the officers found marijuana in addition to the cocaine. Rollins’s possession and use of the car for a week, his installation of spinner rims, his mail found tucked behind the driver’s-side visor, and the fact that he was driving the car while the cocaine and marijuana were secreted near the gas tank are all links supporting Rollins’s knowing possession of the cocaine. See Brown, 911 S.W.2d at 747. Nevertheless, Rollins argues that the evidence is legally and factually insufficient because the police did not test the bags of cocaine and marijuana for fingerprints, because Rollins did not appear to be under the influence of drugs, and because there was no odor of marijuana emanating from the car. Furthermore, Rollins argues that he could have shared the car with another person or that another person could have hidden the contraband near the gasoline tank without Rollins’s knowledge. As we have noted, it is the logical force of the links, not the number of links, which is important to our analysis. See Nehm, 129 S.W.3d at 699–70. Moreover, the Court of Criminal Appeals rejected the “outstanding reasonable hypothesis” standard in Brown. 911 S.W.2d at 748. “The ultimate consequence is that each defendant must still be affirmatively linked with the drugs he allegedly possessed, but this link need no longer be so strong that it excludes every other outstanding reasonable hypothesis except the defendant’s guilt.” Id. Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that a rational trier of fact could have found the elements of possession of a controlled substance beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Powell, 194 S.W.3d at 506. Furthermore, viewing the evidence in a neutral light we cannot say that the verdict is clearly wrong or against the great weight and preponderance of the evidence. Johnson, 23 S.W.3d at 11. Accordingly we overrule Rollins’s first issue. Reformation of the Judgment Finally, we note that the trial court’s judgment does not accurately comport with the record in that it does not reflect Rollins’s pleas of not true to the enhancements charged in the indictment or the jury’s verdict of true. “An appellate court has authority to reform a judgment to include an affirmative finding to make the record speak the truth when the matter has been called to its attention by any source.” French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (citing Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d)); accord Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (“An appellate court has the power to correct and reform a trial judgment to make the record speak the truth when it has the necessary data and information to do so.”); see also Tex. R. App. P. 43.2(b). The record supports modification of the judgment because the court reporter’s record reflects that appellant entered a plea of not true. Accordingly, the trial court’s judgment is modified to reflect that appellant pleaded not true to both enhancements alleged by the State and to reflect that the jury found both enhancements true. Conclusion We modify the judgment of the trial court and, as modified, we affirm. Michael Massengale Justice Panel consists of Justices Bland, Massengale, and Wilson.[4] Do not publish. Tex. R. App. P. 47.2(b). [1] Article 38.22, section 3 of the Code of Criminal Procedure specifies procedures for admitting an oral statement made as a result of custodial interrogation into evidence against the accused in a criminal proceeding. The procedures include, among other things, a requirement that Miranda warnings be administered. See Tex. Code Crim. Proc. Ann. art. 38.22, §§ 2(a), 3(a)(2) (Vernon 2005). Rollins’s appellate objection based on article 38.22, therefore, comports with his trial objection based on article 38.23 and Miranda. See Tex. R. App. P. 33.1. [2] State: State is tendering Exhibit One to defense counsel. Just an illustration of what a spinner might look like. Defense: In this case? State: No, this is just in general. Not specific demonstration. Defense: I object, Judge. Relevance, it’s not the wheels in this case. The court: For demonstration. State: I can do it for demonstrative purposes— Defense: This is not relevant. We don’t know what brand, style, how much those rims cost. [3] The fact that Rollins was the sole occupant of the vehicle distinguishes his case from Blackman v. State, No. 01-08-00138-CR, 2009 WL 5064763 (Tex. App.—Houston [1st Dist.] Dec. 22, 2009, no pet. h.). In Blackman, the appellant was a front-seat passenger in a vehicle along with two other occupants of the vehicle, and he was convicted of possessing cocaine found behind the driver’s seat, in a box with a lid on it, and under a blanket. 2009 WL 2634622 at *2. Moreover, the evidence in this case amply demonstrated that Rollins had control of the rental car, whereas the evidence in Blackman was held not to have established that the appellant in that case had control over the vehicle. See id. at *6. [4] The Honorable Randy W. Wilson, judge of the 157th District Court of Harris County, Texas, participating by assignment. See Tex. Gov’t Code Ann. § 74.003(h) (Vernon 2005).