Donald Paul Buller v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-02-195 CR ____________________ DONALD PAUL BULLER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 252nd District Court Jefferson County, Texas Trial Court Cause No. 83933 MEMORANDUM OPINION Donald Paul Buller was convicted on a charge of possession of a controlled substance -- cocaine -- one gram or more but less than four grams. He was sentenced as a habitual offender to 25 years in the custody of the Texas Department of Criminal Justice--Institutional Division. See Tex. Health & Safety Code Ann. § 481.115 (a) (Vernon Supp. 2003). Buller has appealed, challenging the legal sufficiency of the evidence to support his conviction, and also asserting improper jury argument by the prosecutor. Early on a January morning, Beaumont Police Officers Scarborough and Bean observed a Jeep run a stop sign. The officers activated overhead lights on their patrol car and pulled behind the Jeep. The Jeep did not come to a stop immediately, but instead continued on a slow roll for 250 feet and then stopped in the middle of an intersection. Scarborough testified this would indicate the occupant was trying to conceal something. A high number of sales of illegal drugs occur in the area where the stop occurred. Buller was a passenger in the Jeep. He appeared startled. The officers noticed unusual movements in the Jeep and they saw the passenger make movements and gestures toward the center console. Both occupants of the vehicle were asked to step out, and they were patted down for weapons. Buller appeared very nervous and jittery. Scarborough testified Buller behaved as though he were on drugs. Buller was sweating, though the January morning weather was cold. Bean searched the area in the Jeep within reach of the occupants, and inside the center console he found a plastic baggie containing what was later determined to contain 1.09 grams of crack cocaine. Both occupants were arrested for illegal possession of a controlled substance. To establish unlawful possession of a controlled substance, the State must prove that the accused exercised care, custody, control or management over the contraband. The control need not be exclusive, but rather can be jointly exercised by more than one person. When the accused is not in exclusive possession of the place where the contraband is found, the State must show additional affirmative circumstances linking the accused and the contraband. The affirmative link can be established by showing additional facts and circumstances which raise a reasonable inference of the accused's knowledge and control of the contraband. See Mayes v. State, 870 S.W.2d 695, 697 (Tex. App.--Beaumont 1994, no pet.); see also Watson v. State, 861 S.W.2d 410, 414 (Tex. App.--Beaumont 1993, pet. ref'd). The number of affirmative links is not as important as the degree to which they tend to link the accused to the controlled substance. See Stubblefield v. State, 79 S.W.3d 171, 174 (Tex. App.--Texarkana 2002, pet. ref'd); see also Robles v. State, No. 01-02-00312-CR, 2003 Tex. App. LEXIS 2257 at **7 - 8 (Tex. App.--Houston [1st Dist.] Mar. 13, 2003, no pet. h.). The neighborhood in which this stop was made was considered a high drug sale area. The contraband was easily accessible to Buller. He was seated in the passenger side of the vehicle and the cocaine was found in the console next to him. The conduct of the accused and the driver indicated a consciousness of guilt, i.e., the 250-foot "slow roll" prior to stopping, and the furtive gestures of Buller towards the center console. Buller's behavior at the scene appeared consistent with recent consumption of drugs. Given these circumstances, a reasonable trier of fact could conclude Buller had knowledge and control of the drugs; a reasonable trier of fact could find every element of the offense charged beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)(standard of review). The legal sufficiency issue is overruled. In his second issue, Buller contends the trial court erred in failing to grant his motion for mistrial. He claims the prosecutor improperly commented on his failure to testify. The jury argument in question is as follows: So, I want to focus your attention back on this, okay. Now, we have a system of evidence in our courtroom where you hear evidence. That man right there has an absolute right not to testify. (indicating). And you can't hold that against him. But they have the same subpoena power that the State of Texas has and if they wanted to get that other man in here or anybody else to lend some kind of credence to anything that he just said, they could have done that. They have the same subpoena power that we do and they didn't do a thing. They just throw out some what if's, some hypotheticals at you in hopes that one of you will bite off on that. That to me is absolutely amazing. (Defense Counsel): Your Honor, I'm going to object to his opinion. THE COURT: Sustained. (Defense Counsel): And I'd ask the jury to be instruct[ed] to disregard it. THE COURT: The jury is so instructed. (Defense Counsel): And, unfortunately, your Honor, I'd ask for a mistrial. THE COURT: That's denied [Defense Counsel]. To be improper, a prosecutor's comment must clearly refer to the accused's failure to testify; it is not sufficient if it might be construed as an implied or indirect allusion. The test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the accused's failure to testify. See Canales v. State, 98 S.W.3d 690, 694 (Tex. Crim. App. 2003). A reference to the accused's failure to produce evidence, other than his own testimony, is not improper. A prosecutor may, in his final jury argument, comment on defendant's failure to call competent and material witnesses, when it is shown that the witnesses were available but were not called by defendant to testify. See Davis v. State, 967 S.W.2d 476, 480 (Tex. App.--Beaumont 1998, no pet.). The prosecutor argued here that the circumstances shown were sufficient to establish Buller possessed the cocaine. He recognized Buller had the right not to testify, and that this fact could not be held against him. He then argued that there was a witness who could have been called and was not and that defendant called no other witnesses. The argument was not a direct comment on Buller's failure to testify. Further, any harm was cured by the trial court's prompt instruction to disregard. See Hammond v. State, 799 S.W.2d 741, 747-48 (Tex. Crim. App. 1990); see also Cooper v. State, 959 S.W.2d 682, 686 (Tex. App.--Austin 1997, pet. ref'd) (Where remarks in closing might be interpreted as comment on failure to testify, instruction to disregard cures any harm.). Buller's second issue is overruled. In his third issue, Buller contends the trial court erred in overruling his objection to the prosecutor's jury argument that police officers "are the ones that respond to accidents and pull people out of cars and save their lives." He contends this is improper bolstering of the State's law enforcement witnesses. See generally Mitchell v. State, 636 S.W.2d 543, 545-47 (Tex. App.--San Antonio 1982, no pet.). The prosecutor did not argue that these actions by these police officers makes their testimony more worthy of belief. The record includes testimony, without objection, about medals awarded for pulling a person out of a burning car. See McFarland v. State, 845 S.W.2d 824, 840 (Tex. Crim. App. 1992). The argument referred to this evidence. Furthermore, Buller's objection at trial, that the prosecutor's statements were "improper argument," did not state any grounds for the objection with sufficient specificity to make the trial court aware of the complaint. The objection did not preserve any alleged error for appellate review. See Tex. R. App. P. Rule 33.1(a)(1)(A). The third issue is overruled. The judgment of the trial court is AFFIRMED. PER CURIAM Submitted on April 7, 2003 Opinion Delivered April 30, 2003 Do Not Publish Before McKeithen, C.J., Burgess, and Gaultney, JJ.