Holland, Timothy Lynn v. State

Affirmed and Opinion filed March 16, 2004 Affirmed and Opinion filed May 27, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00384-CR ____________ TIMOTHY LYNN HOLLAND, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 228th District Court Harris County, Texas Trial Court Cause No. 916,323 O P I N I O N Appellant, Timothy Lynn Holland, was charged by indictment with possession of more than one gram, but less than four grams of cocaine. See Tex. Health & Safety Code Ann. § 481.115 (Vernon 2003). The indictment also contained two enhancement paragraphs both alleging previous convictions for possession of cocaine. Appellant waived his right to a jury and entered a plea of “not guilty” to the trial court. After weighing the evidence, the trial court found appellant guilty, found the enhancement paragraphs to be “true,” and assessed appellant’s punishment at confinement in the state penitentiary for a term of twenty-five years. In four points of error, appellant contends (1) the trial court erred in overruling his motion to suppress, (2) he was denied the protections of the United States and Texas Constitutions, (3) the evidence is legally insufficient to support the conviction, and (4) the evidence is factually insufficient to support the conviction. We affirm. On June 27, 2002, police officers from the Houston Police Department were conducting “street level” narcotics enforcement in Houston’s Fifth Ward neighborhood. As they approached a convenience store in an unmarked van, the police observed appellant, who was between a Buick automobile and a pickup truck, standing near the driver’s side window of the truck apparently talking to the truck’s driver. The police van stopped on the far side of the convenience store to permit Officer Fuller to approach surreptitiously on foot. However, as he exited the van, he heard appellant say something about the “jump-out boys.”[1] Officer Fuller then observed appellant quickly step toward the Buick, open the passenger’s side door, toss something inside the car, and then close the door. Realizing they had been recognized as police officers, Fuller and the other officers immediately approached and detained appellant. Officer Fuller then saw on the passenger’s seat of the Buick a plastic wrapper that appeared to contain a rock of crack cocaine. When asked, appellant admitted that the Buick was his car, and the officers discovered he was in possession of the keys to the car. Officer Fuller opened the passenger’s side door and retrieved the contraband. It was later confirmed by a chemist to be more than 2 grams of cocaine. In his first two points of error, appellant contends the trial court denied him the protections of the Fourth Amendment of the United States Constitution and Article I, Section 9, of the Texas Constitution when it overruled his motion to suppress. While the record reflects appellant filed a motion to suppress on November 11, 2002, nothing therein suggests it was ever presented to the trial court for a ruling. Apparently, no hearing was conducted on the motion to suppress; we have found no ruling thereon in the appellate record; and no objection was made at trial to the introduction of evidence regarding the contraband found by Officer Fuller in the Buick automobile. To preserve error, the record must show that appellant made a timely request, objection, or motion, and that the trial court ruled on it. Tex. R. App. P. 33.1(a)(1). There are two main purposes behind requiring a timely, specific objection: 1) to inform the judge of the basis of the objection and give him the chance to make a ruling on it, and 2) to give opposing counsel the chance to remove the objection or provide other testimony. Garza v. State, 126 S.W.3d 79, 82 (Tex. Crim. App. 2004). Here, nothing has been preserved for our review. Accordingly, appellant’s first and second points of error are overruled. In his third and fourth points of error, appellant contends the evidence is legally and factually insufficient to support his conviction. When reviewing the legal sufficiency of the evidence, we must 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 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). In conducting this review, we do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). When reviewing claims of factual insufficiency, it is our duty to examine the jury’s weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133, 134 (Tex. Crim. App. 1996). There are two ways in which evidence can be factually insufficient: (1) the evidence is so weak as to be clearly wrong or manifestly unjust, or (2) the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003). Determining which standard applies depends upon whether the complaining party had the burden of proof at trial. Id. If the complaining party did not have the burden of proof, then the “manifestly unjust” standard applies. Id. On the other hand, if the complaining party had the burden of proof, then the “against the great weight and preponderance” standard applies. Id. Under the Texas Court of Criminal Appeals’ modified approach, if the defendant challenges the factual sufficiency of the elements of the offense, even though the State had the burden of proof, we must review the evidence using both standards. Id. Thus, when reviewing factual sufficiency challenges, we must determine “whether a neutral review of all of the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.” Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Appellant contends the evidence is both legally and factually insufficient because there was no evidence that the object he threw inside the Buick automobile was the cocaine subsequently found on the passenger’s seat by the police. Under very similar facts, courts have found the evidence of possession to be sufficient where the police observe a defendant toss an unknown object and later find contraband in the vicinity of the area where the abandonment occurred. See Mason v. State, 99 S.W.3d 652, 657 (Tex. App.―Eastland 2003, pet. ref’d) (evidence held legally and factually sufficient where defendant made a “throwing-type motion away from his body” while running from the police and police thereafter discovered crack cocaine in the area where the gesture occurred); Hall v. State, 783 S.W.2d 14, (Tex. App.―Houston [14th Dist.] 1989, pet. ref’d) (evidence sufficient where police observed defendant “quickly duck behind a car” and police later found five rocks of cocaine in a cellophane wrapper several feet from the front of the car). Here, Officer Fuller observed appellant open the passenger’s side-door of the Buick, toss something inside, and close the door. When Officer Fuller looked inside the vehicle, he observed the contraband on the passenger’s seat. Accordingly, we find the evidence legally and factually sufficient to show appellant knowing possessed the contraband at issue. Appellant’s third and fourth points of error are overruled, and the judgment of the trial court is affirmed. /s/ J. Harvey Hudson Justice Judgment rendered and Opinion filed May 27, 2004. Panel consists of Justices Yates, Anderson, and Hudson. Do Not Publish — Tex. R. App. P. 47.2(b). [1] In some neighborhoods, undercover police officers are known as “jump-out boys” due to their practice of jumping out of vehicles to arrest persons engaged in illegal narcotics traffic.