Jeremy David Lummus v. State
07-15-00120-CR
| Tex. | Sep 21, 2015Background
- Appellant Jeremy Lummus was convicted by jury of possession of methamphetamine with intent to deliver 4-200 grams; the 297th District Court, Tarrant County, Texas, sentenced him to 27 years with $359 in costs.
- Investigators observed Lummus stop for DUI-like behavior; he lacked a valid license, leading to his arrest.
- During a pat-down, officers recovered a digital scale (SX-3) and a cell phone (SX-4); they later recovered methamphetamine from Lummus’s person and vehicle.
- A patrol-car video recorded Lummus in the backseat resisting and attempting to discard evidence, including methamphetamine.
- Chemist Harris weighed 23.78 grams of methamphetamine (including debris/adulterants and dilutants) after debris was removed; the state argued this weight supported the greater offense.
- The State contends the trial court did not commit reversible error on three appeal issues: mistrial/Evidence, lesser-included offense instruction, and suppression; the State seeks affirmation of the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Extraneous-offense reference and mistrial | Lummus argues Baker’s prior-relationship statement was extraneous offense evidence. | State maintains the remark was not an extraneous offense and any error was cured by instructions. | Overruled; no reversible error; if any error existed, cure by instruction forecloses harm. |
| Lesser-included offense instruction | Lummus contends there was evidence he possessed only 1-4 grams with intent to deliver. | State argues issue not properly preserved and/or no factual basis for a lesser-included instruction. | Denied; insufficient preservation and no affirmative evidence for a lesser offense. |
| Motion to suppress (search & seizure) | Lummus claims improper search/seizure following arrest. | State says the issue is inadequately briefed/waived; arrest lawfully justified search incident to arrest. | Waived/overruled; no reversible error on suppression |
Key Cases Cited
- Archie v. State, 221 S.W.3d 695 (Tex. Crim. App. 2007) (standard for mistrial and prejudice/harm)
- Kemp v. State, 846 S.W.2d 289 (Tex. Crim. App. 1992) (preservation and cure of extraneous-offense references)
- Mapp v. Ohio, 367 U.S. 643 (1961) (exclusionary rule and search/seizure standards)
- Wong Sun v. United States, 371 U.S. 471 (1963) (harmless-error and exclusionary principles)
- Wood v. State, 18 S.W.3d 642 (Tex. Crim. App. 2000) (harmless-error doctrine application in trial rulings)
- Thrift v. State, 176 S.W.3d 221 (Tex. Crim. App. 2005) (presumption of cure for improper testimony)
- Gamboa v. State, 296 S.W.3d 574 (Tex. Crim. App. 2009) (instruction to disregard as cure for trial improprieties)
- Farrakhan v. State, 247 S.W.3d 720 (Tex. Crim. App. 2008) (functional-equivalence approach to lesser-included offenses)