Reginald Otis Manuel v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-04-233 CR ____________________ REGINALD OTIS MANUEL, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 252nd District Court Jefferson County, Texas Trial Court Cause No. 89259 MEMORANDUM OPINION (1) A jury convicted appellant, Reginald Otis Manuel, of possession of a controlled substance, cocaine, in an amount of one gram or more but less than four grams. See Tex. Health & Safety Code Ann. § 481.115(a),(c) (Vernon 2003). Manuel elected to have the court assess his punishment. The trial court found Manuel to be a habitual offender and assessed punishment at twenty-five years of confinement in the Texas Department of Criminal Justice, Institutional Division. An appeal was filed. Appellant's counsel filed an Anders brief asserting no arguable grounds for appeal exist. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); see also Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). The Evidence Officer Breiner testified he and his partner, Officer Dean, attempted to stop a car for a traffic violation. The vehicle failed to stop, so they began pursuing it. One of the occupants jumped from the car as it was slowing down. Both officers testified it was Manuel who exited the vehicle. Officers Breiner and Dean described Manuel as black, bald, and wearing a Houston Texans jacket and tan pants. Officer Dean remained on the scene to secure the vehicle and its occupants. Officer Dean testified the occupants of the vehicle identified the fleeing individual as Reginald Manuel. While pursuing Manuel, Officer Breiner saw Manuel fall and drop some rocks, which appeared to be crack cocaine. Officer Breiner saw Manuel throw down a napkin containing an object Officer Breiner believed to be part of a crack cookie. Officer Breiner eventually lost sight of Manuel. He radioed other officers and established a perimeter in which to search for Manuel. Breiner then returned to retrieve the evidence he had seen Manuel drop. According to Officer Breiner, fingerprints could not be recovered from the discarded napkin. Officer Breiner subsequently received a call from another patrol unit, which had detained a van and taken Manuel into custody. Breiner testified that Manuel matched the description except he was not wearing the Houston Texans jacket. Breiner testified the jacket was never recovered. Officer Dean, who had since arrived at the location where the van was stopped, testified Manuel was the same individual he had seem jump from the car and run away. Officer Dean also testified he heard an unknown individual call out to alert him that a van driving by belonged to Manuel's family. Latonya Boyd, the mother of Manuel's son Israel, testified it was not Manuel who jumped from the vehicle, but a man whose identity she did not know. Boyd stated she had picked up the unknown individual and a female because they had asked her for a ride. Boyd described the man as tall, light-skinned, bald, and wearing dark-colored jeans and a jacket. Boyd denied that anyone in the car identified the fleeing individual as Manuel. Boyd testified the van belonged to Manuel's brother. Boyd denied seeing Manuel jump into the van. Boyd stated Israel called his uncle on the cell phone to see where Manuel was. Boyd stated she had previously been convicted of Class B theft and the misdemeanor offense of failing to identify herself to a police officer. Manuel's son, Israel, also testified his mother picked up a man, whom he did not know, and a woman. Israel stated the man who fled the car was the stranger, not Manuel. Israel denied seeing the man drop anything as he fled. Israel stated the woman they had picked up said "Reginald Manuel" to the officer. Israel further testified he had his father's cell phone with him, and he used the cell phone to call his father to tell him they were about to be stopped by the police. Israel stated he told his father that his mother was being stopped, and asked him to come for him and his siblings. Manuel's brother, John, testified he picked Manuel up from their mother's house because he and Manuel planned to watch a basketball game on television. John stated Manuel was wearing a T-shirt and khaki-colored pants, and denied that Manuel was wearing a jacket. John testified he then took Manuel to his house to watch the game. According to John, Israel called during the game and asked to speak to his father. John stated that, when the conversation ended, Manuel said they had to go because his family had been stopped by the police. John stated he and Manuel observed flashing lights and saw the car Boyd was driving. John testified he and Manuel saw that no one was in handcuffs, so they passed by without stopping. John stated they then saw a police car approaching them from behind, so he pulled over, and Manuel was placed in handcuffs. The Anders Brief After appellate counsel filed a brief that concluded no reversible error and no arguable issues are presented in this appeal, Manuel was granted an extension of time in which to file a pro se brief. See Anders, 386 U.S. 738; High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). He has not filed a pro se brief. Instead, he has filed a motion asking that new appellate counsel be appointed to represent him. In the Anders brief, Manuel's counsel suggests the State's reference during closing argument to the defense's failure to introduce cell phone records may have constituted a comment on Manuel's decision not to testify. The State also filed a brief which discusses Manuel's overruled hearsay objection as to the unidentified person's statement about the van. The jury is the ultimate authority on the credibility of the witnesses and the weight to be given their testimony. See Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). We have reviewed the clerk's record and the reporter's record, and we find no arguable reversible error requiring us to order appointment of new counsel. The prosecutor's closing argument did not call the jury's attention to the absence of evidence that only testimony from Manuel could supply and did not constitute a comment on Manuel's failure to testify. See Davis v. State, 967 S.W.2d 476, 480 (Tex. App--Beaumont 1998, no pet.). Admission in evidence of the unknown bystander's statement alerting officers to the van does not arguably require reversal. See Tex. R. Evid. 803 (1), (2). Appellant's motion is denied and the judgment is affirmed. AFFIRMED. PER CURIAM Submitted on January 27, 2005 Opinion Delivered February 23, 2005 Do Not Publish Before McKeithen, C.J., Gaultney and Horton, JJ. 1. Tex. R. App. P. 47.4