Michael Williams Hendrix v. State

Michael Williams Hendrix v. State IN THE TENTH COURT OF APPEALS No. 10-01-337-CR No. 10-01-338-CR      MICHAEL WILLIAMS HENDRIX,                                                                               Appellant      v.      THE STATE OF TEXAS,                                                                               Appellee From the 338th District Court Harris County, Texas Trial Court Nos. 869,104 and 877,482                                                                                                                 MEMORANDUM OPINION                                                                                                                       Michael Williams Hendrix pleaded guilty to credit card abuse in trial court cause number 869,104 (our cause number 10-01-337-CR) and guilty to fraudulently using the identifying information of another in trial court cause number 877,482 (our cause number 10-01-338-CR). Pursuant to the State’s plea recommendation, the court assessed Hendrix’s punishment at ten years’ imprisonment in each case and ordered that the sentences run concurrently. The trial court granted Hendrix permission to appeal the court’s ruling on certain pretrial motions.       We have previously abated these appeals twice. On February 20, 2002, we abated the appeals for a hearing to determine why no brief had been filed on Hendrix’s behalf. See Tex. R. App. P. 38.8(b)(2); Parker v. State, 63 S.W.3d 593, 594 (Tex. App.—Waco 2002, order, no pet.). At the abatement hearing, the trial court permitted Hendrix’s retained counsel to withdraw and offered to appoint counsel to represent him. Hendrix declined and informed the court that he would retain other counsel.       After Hendrix failed to advise this Court regarding the identity of his new counsel, we abated the appeal a second time on July 3 for a hearing to insure that he fully understood: his right to retain counsel of his own choosing, his right to court-appointed counsel if indigent, and his right to self-representation. At this abatement hearing, Hendrix advised the trial court that he understands all these rights. He told the trial court that he “want[s] to drop the appeal.” The court reminded Hendrix again of his rights. Hendrix repeated his desire “to drop the appeal.”       Rule of Appellate Procedure 42.2(a) provides: At any time before the appellate court's decision, the appellate court may dismiss the appeal if the party that appealed withdraws its notice of appeal—by filing a written withdrawal in duplicate with the appellate clerk, who must immediately send the duplicate copy to the trial court clerk. An appellant must personally sign the written withdrawal. Tex. R. App. P. 42.2(a).       Under similar circumstances, the First Court of Appeals applied Rule of Appellate Procedure 2 to excuse an appellant from Rule 42.2(a)’s requirement of a written withdrawal when the appellant’s lawyer refused to draft a written withdrawal even though his client stated on the record her desire to withdraw her appeal. See Conners v. State, 966 S.W.2d 108, 110-11 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d).       We agree that this is an appropriate application of Rule 2. Hendrix has plainly stated his desire “to drop the appeal.” Accordingly, his appeal is dismissed. Id.                                                                           PER CURIAM Before Chief Justice Davis,       Justice Vance, and       Justice Gray Appeal dismissed Opinion delivered and filed August 28, 2002 Publish [CR25] ress the evidence because of the search conducted without a warrant. We overrule issue two. Improperly Admitted Evidence            Poole complains that the trial court abused its discretion in admitting three exhibits, including the actual methamphetamine, its packaging, and DPS analysis report, because the State failed to establish the chain of custody and because the foundation for admitting the evidence was not properly laid. Beightol objected to the admission on these grounds to the trial court; Poole did not. Additionally, there is nothing in the record to establish that either party was adopting the objections of the other party. A co-defendant can adopt by reference the objections of another co-defendant.  State v. Manley, 220 S.W.3d 116, 128 (Tex. App.—Waco 2007, no pet.); Martinez v. State, 833 S.W.2d 188, 191 (Tex. App.—Dallas 1992, pet. ref'd). If, however, a defendant does not voice his own personal objection and does not adopt that of his co-defendant, he may not rely on his co-defendant's objection to preserve error.  See Lerma v. State, 679 S.W.2d 488, 498 (Tex. Crim. App. 1982); Martinez , 833 S.W.2d at 191. See also Tex. R. App. P. 33.1(a) (in order to preserve error for appeal, a party must timely object to the trial court). This error was not properly preserved by Poole. We overrule issues three and four.  Directed Verdict, Legal and Factual Sufficiency            Poole argues that the court erred in denying his motion for an instructed verdict and that the evidence was both legally and factually insufficient to sustain his conviction. An instructed (or directed) verdict is a challenge to the legal sufficiency of the evidence, so we will review those issues together.  Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). In reviewing the legal sufficiency of the evidence, this Court looks at all of the evidence in the light most favorable to the verdict to 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, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Bigon v. State, 252 S.W.3d 360, 366 (Tex. Crim. App. 2008).            Under a legal sufficiency review, we consider all of the evidence admitted, both properly and improperly admitted, as well as direct and circumstantial evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side.  See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). The reviewing court must give deference to "the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. at 318-19). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor and can alone be sufficient to establish guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). In a factual-sufficiency review, there is only one question to be answered: “Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?” Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust; and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007) (citing Watson, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Castillo v. State, 221 S.W.3d 689, 693 (Tex. Crim. App. 2007).  "[A]n appellate court must first 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 before it is justified in exercising its appellate fact jurisdiction to order a new trial." Watson, 204 S.W.3d at 417.  A reversal for factual insufficiency cannot occur when "the greater weight and preponderance of the evidence actually favors conviction." Roberts, 220 S.W.3d at 524. Although an appellate court has the ability to second-guess the jury to a limited degree, the factual-sufficiency review should still be deferential, with a high level of skepticism about the jury's verdict required before a reversal can occur. Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008); Watson, 204 S.W.3d at 417. An appellate court judge cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, he would have voted to acquit had he been on the jury. Watson, 204 S.W.3d at 714. Nor can an appellate court judge declare that a conflict in the evidence justifies a new trial simply because he disagrees with the jury's resolution of that conflict. Id. The verdict may be set aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Grotti, 273 S.W.3d at 280. Poole contends that the evidence is legally insufficient because a rational juror could not find beyond a reasonable doubt that Poole was aware that the controlled substances were inside his van on the date alleged based on an officer’s testimony that an informant indicated there were drugs inside the van. The informant had met Poole in a grocery store to set up the transaction, which would be 14 grams of methamphetamine for $550.00. The evidence also showed that Poole, his co-defendant Beightol, and the informant had phone conversations between them that indicated that a financial transaction was to take place at a certain time and location. Poole’s voice is identified on the recording as saying, “I’ll hand you that, you hand me the money,” referring to the stick of deodorant. The officers considered that the agreed price of $550.00 was a reasonable amount on the street for the amount of drugs to be purchased. The informant indicated with a pre-arranged signal to law enforcement officers who were observing Poole’s vehicle that there were drugs inside the vehicle. An empty deodorant container with the removed stick of deodorant was located near Poole in the van. The drugs were located in the van which Poole was driving. The evidence was legally sufficient for the jury to find that Poole was aware that the controlled substances were in his van. Poole argues that the evidence was factually insufficient because there was insufficient evidence that Poole delivered or possessed with the intent to deliver any controlled substance. More specifically, Poole avers that the only evidence offered in this regard was from the testimony of the arresting officer, who “merely offered his opinion” that Poole was attempting to deliver the methamphetamine to the informant. Poole also contended that the informant was unreliable, had never been used by law enforcement before or since that day, and that the informant’s information should have been corroborated or he should have testified at the trial. However, the officer also testified without objection that he knew of Poole’s reputation for dealing drugs to at least three low level dealers in the county, he had listened in on the phone conversations between the informant, Poole, and Beightol, and the informant indicated that drugs were in the vehicle. Additionally, the recordings of the phone conversations, the drugs, and the deodorant stick and container found in the vehicle were before the jury. Reviewing the evidence under the appropriate standards, giving deference to the jury as the determiner of facts and the credibility of the witnesses, we find the evidence was both legally and factually sufficient to sustain Poole’s conviction. We overrule issues five, six, and seven. Conclusion            We find that the trial court did not err in the denial of Poole’s motion to suppress evidence. We further find that Poole’s objections to the admission of evidence at trial were not properly preserved before the trial court, and were therefore waived. We find that the evidence was both legally and factually sufficient to sustain the judgment. We affirm the judgment of conviction.                                                                         TOM GRAY                                                                        Chief Justice  Before Chief Justice Gray,            Justice Reyna, and            Justice Davis Affirmed Opinion delivered and filed November 25, 2009 Do not publish [CRPM] [1] Beightol has also appealed her conviction in No. 10-08-00374-CR.