Anthony George Fomby v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-09-00071-CR ______________________________ ANTHONY GEORGE FOMBY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 276th Judicial District Court Morris County, Texas Trial Court No. 10,035 Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION After a trial by jury, Anthony George Fomby was convicted of possession of more than four grams but less than 200 grams of cocaine, a second degree felony that was enhanced to first degree felony punishment by a prior conviction. The jury assessed Fomby's punishment at ninety-nine years' imprisonment and a $10,000.00 fine, to which he was sentenced by the trial court. I. Background Facts On April 26, 2008, Texas Department of Public Safety Trooper Roger Penney clocked a car driven by Fomby at seventy-nine miles per hour in a seventy-mile-per-hour zone, and Penney began following the vehicle. The vehicle made two U-turns and eventually turned into the driveway of Sam and Dixie Moore, neither of whom knew Fomby. Penney parked his patrol car behind Fomby's car and saw him get out of the vehicle, walk to the Moores' front porch and carry on a short conversation with someone, later identified as Dixie Moore, at the Moores' front door. Penney looked through Fomby's car windows and saw an open container of beer and a clear plastic bag found to contain 0.6 grams of cocaine. Dixie saw Fomby put something into a small trash can next to the door. Subsequently, a plastic bag containing 6.59 grams of cocaine was found in the trash can. (1) On appeal, Fomby contends the evidence supporting the conviction is legally and factually insufficient. (2) We affirm the judgment because the evidence was legally and factually sufficient to prove possession of a controlled substance. II. Legal and Factual Sufficiency In his sole point of error, Fomby argues the evidence supporting his conviction was legally and factually insufficient. We disagree. After reviewing the evidence on the required standards for legal (3) and factual (4) sufficiency, we find the evidence sufficient to support the jury verdict. A. Standard of Review In this analysis, we use a hypothetically correct jury charge to evaluate both the legal and factual sufficiency of evidence. (5) Grotti v. State, 273 S.W.3d 273 (Tex. Crim. App. 2008). Such a charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Villarreal v. State, 286 S.W.3d 321 (Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). B. Requirement of Links to the Controlled Substance A conviction for possession of cocaine, a penalty group 1 controlled substance, see Tex. Health & Safety Code Ann. § 481.102(3)(D) (Vernon Supp. 2008), is supported only when the defendant "knowingly or intentionally possesses" the cocaine. See Tex. Health & Safety Code Ann. § 481.115(a) (Vernon 2003). Proof of possession requires evidence that the accused exercised "actual care, custody, control, or management" over the substance. Tex. Penal Code Ann. § 1.07(a)(39) (Vernon Supp. 2008); see also Tex. Health & Safety Code Ann. § 481.002(38) (Vernon Supp. 2008). Thus, the State must prove the accused (1) exercised "actual care, custody, control, or management over the [contraband]" and (2) knew that the matter "possessed" was contraband. Martin v. State, 753 S.W.2d 384, 386 (Tex. Crim. App. 1988). When an accused is not in exclusive possession of the place where contraband is found, it cannot be concluded he or she had knowledge or control over the contraband unless there are additional independent facts and circumstances that link the accused to the contraband. Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005). These "links" may be either direct or circumstantial and must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous. Id. at 405-06. The number of links present is not as important as the degree to which they tend to link the defendant to the controlled substance. Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.--Dallas 2003, no pet.); Williams v. State, 906 S.W.2d 58, 65 (Tex. App.--Tyler 1995, pet. ref'd); Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.--Austin 1991, pet. ref'd). There is no set formula of facts that dictate a finding of links sufficient to support an inference of knowing possession of contraband. Porter v. State, 873 S.W.2d 729, 732 (Tex. App.--Dallas 1994, pet. ref'd). Nonetheless, recognized factors include whether: (1) the contraband was in plain view or recovered from an enclosed place; (2) the accused was the owner of the premises or the place where the contraband was found; (3) the accused was found with a large amount of cash; (4) the contraband was conveniently accessible to the accused; (5) the contraband was found in close proximity to the accused; (6) a strong residual odor of the contraband was present; (7) the accused possessed other contraband when arrested; (8) paraphernalia to use the contraband was in view, or found on the accused; (9) the physical condition of the accused indicated recent consumption of the contraband in question; (10) conduct by the accused indicated a consciousness of guilt; (11) the accused attempted to flee; (12) the accused made furtive gestures; (13) the accused had a special connection to the contraband; (14) the occupants of the premises gave conflicting statements about relevant matters; (15) the accused made incriminating statements connecting himself or herself to the contraband; (16) the quantity of the contraband; and (17) the accused was observed in a suspicious area under suspicious circumstances. See Lassaint v. State, 79 S.W.3d 736, 740-41 (Tex. App.--Corpus Christi 2002, no pet.); Kyte v. State, 944 S.W.2d 29, 31-32 (Tex. App.--Texarkana 1997, no pet.). It is the logical force the factors have in establishing the elements of the offense, not the number of them, that is important. In other words, we ask if there is evidence of circumstances, in addition to mere presence or proximity, that adequately justifies the conclusion that the defendant knowingly possessed the substance. Evans v. State, 202 S.W.3d 158, 161 n.9 (Tex. Crim. App. 2006); see generally King v. State, 895 S.W.2d 701 (Tex. Crim. App. 1995). C. Fomby's Possession of the Contraband Considering the framework just set out, we now turn to the facts of the case to determine if sufficient evidence links Fomby to the 6.59 grams of cocaine found in the trash can. Penney parked his patrol car behind Fomby's car and saw him get out of the vehicle, walk to the Moores' porch and carry on a short conversation with someone, later identified as Dixie, at the Moores' front door. The trash can in which the 6.59 grams of cocaine was found was on the Moores' porch adjacent to the door. While Fomby spoke with Dixie, Penney looked through Fomby's car windows and saw an open container of beer and a clear plastic bag containing a white powder. After leaving the Moores' porch, Fomby spoke with Penney and admitted that the white powder was cocaine. Dixie testified that a man she did not know knocked on her door and asked if the Moores' car was for sale, and she told him "no." There was no "for sale" sign on the car or in the Moores' yard. After the conversation, as Dixie was closing the door, she saw "him lean over and try to stuff something inside the trash can," "like he was pushing something down toward the bottom." (6) She explained to her husband, Sam, what happened; he searched the trash can, found the plastic bag containing 6.59 grams of cocaine, and alerted Penney. The bag of cocaine was "wrapped similarly" to the plastic bag of cocaine in Fomby's car. When faced with a record that supports conflicting inferences, we presume the trier of fact resolved any conflict in support of the verdict. See id. at 164 n.19; Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). "The jury is the exclusive judge of the credibility of witnesses and of the weight to be given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the evidence." Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). In resolving conflicts in the evidence, a jury "may accept one version of facts and reject another or reject any of a witness' testimony." Baker v. State, 986 S.W.2d 271, 276 (Tex. App.--Texarkana 1998, pet. ref'd). Here, Fomby's presence and actions at the Moores' residence indicated suspicious circumstances. The contraband was found in close proximity to Fomby, recovered from an enclosed place, and was conveniently accessible to Fomby. Other contraband was found in Fomby's possession. The logical force of the evidence is sufficient for a jury to reasonably infer that Fomby placed the bag of cocaine in the trash can, and therefore, the bag of cocaine was knowingly under Fomby's care, custody, control, or management. Cf. Evans, 202 S.W.3d at 162. There is ample evidence supporting the verdict from which a rational jury could find the elements of possession of a controlled substance beyond a reasonable doubt. The evidence is not so weak that the jury's verdict is clearly wrong and manifestly unjust. We overrule Fomby's points of error and affirm the judgment of the trial court. Jack Carter Justice Date Submitted: September 16, 2009 Date Decided: October 2, 2009 Do Not Publish 1. Eight plastic bags of white powder were found in the trash can; however, only the bag containing 6.59 grams of cocaine was tested for verification of its contents. 2. Fomby admits that he possessed the 0.6 grams of contraband found in the vehicle, but specifically challenges the charge that he possessed the 6.59 grams of cocaine found in the trash can. 3. Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009). 4. Id. at 518-19. 5. We find the trial court's charge to the jury to have been in substantial, if not complete, compliance with the applicable law, and thus, the equivalent of a hypothetically correct charge. 6. Sam did not see with whom Dixie was speaking; however, he positively identified Fomby as the man speaking with Penney. Dixie testified Fomby was similar in appearance to the man that knocked on her door, but she could not positively identify Fomby as the same man. aying the juror knew some of the people "in chairs," which we take to refer to people having significant roles at trial. The juror said she saw five persons whom she recognized. Newsome's trial counsel questioned the juror about Bobby Bell, a convicted felon who later testified for the State at the punishment phase. The juror testified she did not know Bell, but knew of him. Bell had fathered a child with the juror's great-niece, Amanda Daniels. At trial, Newsome asked for a mistrial, citing the juror's bias and relationship to a witness. Newsome's counsel said he did not "know whether it's for or against my client. I do know the facts are she is related, I think she's related, I think it meets the definition, to a witness in this case." Newsome complains now only that the juror and witness were related within the third degree of consanguinity, and therefore the trial court should have excused the juror or granted Newsome a mistrial by reason of Article 35.16 of the Texas Code of Criminal Procedure. That statute in relevant part allows a defendant to challenge for cause a juror who "is related within the third degree of consanguinity or affinity to the person injured by the commission of the offense, or to any prosecutor in the case . . . ." Tex. Code Crim. Proc. Ann. art 35.16(c)(1) (Vernon Supp. 2004–2005). Article 35.16 (c)(1) does not apply here. At most, the juror had some relation to witness Bell: Bell fathered a child with the juror's great-niece. There is nothing to indicate the juror was related to a victim of Newsome or to any prosecutor on the case. We overrule this point of error. (4) A Witness' Testimony That Newsome "Robs People" Did Not Mandate a Mistrial In his sixth point of error, Newsome complains of a statement by State's witness Benton. Benton was the cleaning lady on duty at the hotel the day of the robbery. Benton testified that, earlier in the day, she had seen a car belonging to a local man, Lakendric "Peewee" Miller. Miller's car was a distinctive maroon Cadillac. Benton said that, as soon as she received the call from the hotel office about the robbery, she thought of the car, then of Newsome. When asked why she thought of Newsome, Benton testified, "Because I know Jarmar. And Jarmar, he robs people. I know he robs people. And I know he has robbed people - -. " Newsome's counsel objected, the jury was excused, and Newsome's counsel moved for a mistrial. Benton did not mention a specific occurrence of Newsome having committed other robberies. The trial court overruled Newsome's motion for a mistrial but instructed the jury to disregard Benton's volunteered comments that Newsome "robs people." An instruction to disregard the improper evidence of an extraneous offense normally cures error, except in extreme cases where it appears that the evidence is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the jurors' minds. Livingston v. State, 739 S.W. 2d 311 (Tex. Crim. App. 1987); Carter v. State, 614 S.W.2d 821 (Tex. Crim. App. 1981). Mistrial is an extreme remedy which is appropriate only when the objectionable event is so emotionally inflammatory that a curative instruction is not likely to prevent the jury from being unfairly prejudiced against the defendant. See Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996). As stated above, testimony referring to extraneous offenses can be rendered harmless by an instruction to disregard, unless it is so clearly calculated to inflame the minds of the jury and is of such a nature as to suggest the impossibility of withdrawing the impression produced. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992); Gardner v. State, 730 S.W.2d 675, 696–97 (Tex. Crim. App. 1987); Bryant v. State, 25 S.W.3d 924, 926 (Tex. App.—Austin 2000, pet. ref'd). Kemp involved a somewhat similar situation. There, a witness for the State mentioned that Kemp had previously been incarcerated in the penitentiary. Kemp, 846 S.W.2d at 308. The Texas Court of Criminal Appeals there found that the statement was not of such an inflammatory nature that it could not be cured with an instruction from the trial court to disregard. Id. We find the uninvited and unembellished reference to alleged extraneous conduct by Newsome was not so inflammatory as to undermine the efficacy of a trial court's instruction to disregard. Id. Because any harm arising from the statement could have been cured by instruction, we conclude the trial court did not abuse its discretion by refusing to grant a mistrial. We also note that, even if denying a mistrial was error, there was no harm from the statement, given the considerable evidence of Newsome's guilt in this case. We overrule this point of error. (5) Requiring Newsome To Give a Voice Exemplar Was Not Error Newsome's final point of error addresses the trial court's order that Newsome read a statement one of the victims claimed the robber made during the robbery. At trial, the State asked that Newsome be required to stand and "speak to the witness," Barbara Williams, one of the robbery victims. After argument by counsel and researching caselaw, the trial court found that the defendant did not have "Fifth Amendment protection for purposes of identification for speaking." The State asked Newsome to read the statement, "Bitch, do you think I'm playing? If you don't open[,] I, I'm going to shoot her," which Williams said was what the robber had said to her during the crime. The trial court stated that having the defendant use the words "bitch" and "shoot" would be overly prejudicial, and required Newsome to simply say, "Do you think I'm playing?" Newsome repeated the phrase, and Williams identified his voice as that of the robber. Newsome complains that requiring him to make the above statement in open court amounted to requiring him to make a testimonial statement and thereby violated his rights under the Fifth and Fourteenth Amendments to the United States Constitution. But Texas courts have long held that requiring defendants to say certain words for identification purposes does not fall within the purview of the protection against self-incrimination, in either the Texas or United States Constitutions. See McInturf v. State, 544 S.W.2d 417, 420 (Tex. Crim. App. 1976). As with handwriting or blood samples and physical features, the voice is an identifying characteristic of the accused which falls outside the scope of the constitutional privilege. Moulton v. State, 486 S.W.2d 334, 337 (Tex. Crim. App. 1971). More recently, the Texas Court of Criminal Appeals has cited the United States Supreme Court's position on voice exemplars: [C]ompelling [the defendant] to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a "testimonial" nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt. Williams v. State, 116 S.W.3d 788, 791–92 (Tex. Crim. App. 2003) (quoting United States v. Wade, 388 U.S. 218, 222–23 (1967)). We overrule Newsome's seventh point of error. We affirm the judgment. Josh R. Morriss, III Chief Justice Date Submitted: March 3, 2005 Date Decided: July 8, 2005 Do Not Publish