Lair v. State

Accord- court for reinstatement. See id.

ingly, agree I trial court did not subject jurisdiction to declare

have matter that Goldberg’s law license was restored granting plea did err jurisdiction of the and the Commission

State Bar. LAIR, Appellant, Kirk

Brandon Texas, Appellee. STATE No. 01-07-00414-CR. Texas, Appeals Court of (1st Dist.). Houston July Cornelius, Atty.-Har-

Shirley Asst. Dist. Houston, County, Appellee. ris of Chief Justice Panel consists and Justices JENNINGS RADACK BLAND.

OPINION

BLAND, Justice. JANE Kirk Brandon appellant,

A found Lair, possession of the offense guilty substance, namely methylene- a controlled (commonly known dioxy methamphetamine 200 and “ecstasy”), weighing between and, pleaded after grams,1 enhance- allegation in one “true” to the previ- had been that he paragraph ment offense, as- felony of a ously convicted for at confinement punishment sessed his error, points In five years. legally that the evidence contends support his convic- factually insufficient to tion, overruling trial court erred improperly com- objections after the State testify and on failure to on his mented record, and he re- matters outside of of counsel ineffective assistance ceived of trial. punishment phase during judgment portion reverse the We judgment affirm the imposing punishment, cause and remand the respects, in all other hearing. punishment for a new Proceedings Facts 21, 2006, September night On Investigation Special Bureau of Federal conducting surveil- Agent J. Chiue was near Bel- Houston, strip shopping at a center Wice, Appellant. lance Brian W. grams, applicable grams than 400 but less 1. See Tex Health Safety Ann. & Code have been 481.103(a)(1) (Vernon appellant could Supp.2007), offense of which § 2003 & that, methy- 2003). possession of 481.116(d) (Vernon involved the note convicted § We amount of lenedioxy methamphetamine, in an although and conviction refer- the indictment grams than 400 but less methylenedioxy metham- more than four possession ence grams. See id. phetamine amount of more than in an Chiue, him Houston, and told working laire Boulevard in Texas. Chiue who was with Department suspected drug worked Houston Police that he that a transaction organized on an officers crime task force. had occurred. Chiue initiated the surveillance after re- agreed that the surveillance Chiue center, ceiving information that the which random, appellant, he had never heard of bar, hall a “hot pool contained Davis, what went Hoang, he did not see activity, for criminal spot” including drug he did not see Dodge, on inside the Agent parked transactions. Chiue hands. further anything change Chiue parking center’s lot an unmarked car. touch agreed that he did not see area, surveyed

As an Asian Chiue sack, paper or look inside the brown hand male, later Hoang, identified as Son nervous, in a any money, over act drive parked to him in green next a Honda. manner, dangerous phone or use a cell or Magnum Chiue then noticed a Red Dodge also stated that he did not beeper. Chiue pull parking park. into the lot and Chiue money Hoang counted know whether unusual, found this to the cen- be because man Hoang came from or the other Asian “mainly frequented by ter was Asians” and join hall to him in the pool who left the Dodge the men in the were African-Amer- any Honda. did not overhear of the Chiue Hoang Dodge, got ican. When saw the Davis, and appellant, conversation between out holding paper of the Honda a brown Hoang. anything also admitted that Chiue sack, lunch began and to walk toward the could have been delivered brown Dodge, parked which was in the center’s delivery and that of the paper sack lengths lot about six car from Chiue. sack, itself, by could consistent with be Hoang paper carried the brown sack “wad- activity. both innocent and criminal up.” ded a Dodge occupied by was however, opinion, the con- Agent Chiue’s driver, later identified a appellant, and consistent with a duct he observed was passenger, later identified as Tristón drug hand-to-hand transaction. Chiue Hoang approached, appel- Davis. As both buyers in noted that it is common for lant Dodge greet- and Davis exited the and drug transactions to arrive hand-to-hand Hoang. ed All three men then entered the safety. pairs seat, Dodge, with in the driver’s seat, Davis in the passenger’s Hoang and Sergeant Landry testified that officers in the back seat. criminal previously had observed lot of lot, including drug activity the center’s

Although Agent Chiue’s view into the also fights. use and Officers had observed blocked, Dodge partially was he observed lot, coming parking into the people various the three men remained inside the and, individuals, leaving, and then meeting Dodge Hoang for about 30 seconds. then Landry’s experience, these “short based on Dodge exited the from the back seat and Landry drug transactions” were sales. Honda, empty-handed. returned to the parked parking one block north of the was Appellant parking and Davis then left the burgundy car occu- lot when he noticed later, lot. A short time an unidentified by pull males into the cen- pied two black joined left the hall and pool Asian male Landry parking ter’s lot.2 described the Honda. Chiue then ob- Landry in that re- “oddity as an area.” Hoang and this unidentified man served radio communication from Chiue money in the radi- ceived counting Honda. Chiue and, Landry, happening, Sergeant oed Houston Police M. about what was referring Dodge Landry the red referred to Chiue. 2. The record indicates was lot, Appellant’s sack. parking Landry paper touch the brown Dodge left the plastic min- on the prints bags officers followed it for 10-15 were not found other sack, ultimately although Hoang’s ran a Dodge utes. The red contained sped, changed bags. Landry lanes without us- light, prints were found on devices, and, a marked ing signal ecstasy after does not have a dis- agreed that arrived, stopped the patrol car officers Appellant tinctive odor. did not have Dodge. amounts of cash. weapons large appellant, Officers asked who was that, as the Landry opined driver driver, Davis, passenger, who Dodge, appellant “would know what was Appellant complied to exit the car. Landry coming agreed into his vehicle.” instructions, they placed the officers’ registered to Dodge that the another Davis, very patrol him a car. who was person, appel- but maintained that because appel- “not as relaxed” as nervous and was car, custody lant had care and lant, comply until the officers did not point in pellant was the owner at that time. got times. As Davis out of asked several area, time, Landry stated that car, console,” which “his elbow hit the Hoang place appellant that met with led seats, and the was between the bucket appellant him to believe “knew what he if not been shut console “clicked as it had doing.” was Landry Dodge, searched the completely.” console, found the brown opened the and Sufficiency Legal and Factual Inside the paper sack described Chiue. sack, Landry pills discovered 1000 blue in error, points two his first later plastic bags. three sandwich Police that the evidence is appellant contends pills ecstasy. that were confirmed factually sup insufficient to legally and knowing pos port his conviction for the

Landry testified that it was his under- ecstasy. Appellant contends radio communi- session of standing, based Chiue’s cations, legally insufficient be Hoang that had handed the sack that the evidence is window, affirmative links Dodge’s passenger’s cause it lacks sufficient through the appellant Dodge. Landry drugs between the and get but did not into the —the view; plain there appellant did not know or Davis contraband was not whether in the car be their transaction. was no odor of contraband knew before odor; ecstasy appellant no that was not cause has Landry agreed appellant drug para additional contraband or Landry and did not no driving dangerously, appellant was they phernalia person; on his appellant believe that or Davis knew drugs at the not under the influence of being by police officers. followed arrest; appellant cooperated of his Landry agreed further time engage and did not conduct patrol lights police car’s pulled over when on, instructions, guilt like fur indicating a consciousness went followed the officers’ con attempts or to flee or gestures, under the influence of tive appear did not to be flee, evidence; destroy appellant made any attempt ceal or drugs, did not statements; incriminating the car complied with the in- no promptly officers’ driving registered was not get Landry out of the car. structions to armed; Davis, no that, appellant; appellant compared stated sack in saw handle the Landry relaxed. did not see one appeared found; movements, ap the contraband was any put furtive which pellant make console, not found on pellant’s fingerprints were anything or his hands

585 in an bags containing Ap- methylenedioxy methamphetamine, the contraband.3 factu- pellant grams asserts the evidence is amount of more than four but less ally insufficient for the same reasons. grams, knowingly than 400 if he or inten- the controlled substance tionally possesses sufficiency legal

We review the of the amount, by aggregate prescribed by viewing the evidence weight, including adulterants or dilutants. light most favorable to the verdict to de- Safety See Tex. Health & Ann. Code any termine whether rational trier of fact 481.103(a)(1) (Vernon Supp. § 2003 & could have found the essential elements of 481.116(d) (Vernon 2003). 2007), § To beyond the offense a reasonable doubt. State, 502, the State must Vodochodsky prove possession, v. 158 509 S.W.3d (1) control, (Tex.Crim.App.2005). We note the accused exercised judge weight substance; trier of fact is the sole of the management, or care over the credibility of the evidence. Mar (2) pos- the accused knew the matter State, (Tex. 912, graves v. 919 State, sessed was contraband. Evans v. Thus, Crim.App.2000). performing (Tex.Crim.App.2006). 202 161 S.W.3d review, legal sufficiency may we not re weight credibility

evaluate the If, here, a defendant does not judgment evidence and substitute our possession place have exclusive Dewberry that of the fact-finder. v. found, where the contraband is then inde (Tex.Crim.App.1999). pendent facts and circumstances must link We resolve inconsistencies the evi him drugs. Poindexter v. Curry dence in favor of the verdict. (Tex.Crim.App.2005) State, 30 S.W.3d 406 (Tex.Crim.App. (holding that evidence was sufficient 2000). drugs link defendant to contained in brown review, sufficiency In a factual we view paper bag bag appel was hidden in where all the in a light, neutral both for lant’s house and confidential informant against the finding, and set aside the police). Regardless disclosed location to proof verdict if the guilt obviously is so whether the evidence is direct or circum weak as to undermine confidence stantial, it must that the defen establish jury’s determination, i.e., that the verdict drug dant’s connection with the was more “clearly seems wrong manifestly un- Evans, than fortuitous. 202 just,” or the proof guilt, although legally presence 161-62. “Mere at the location sufficient, is against great nevertheless insufficient, drugs where are found is thus weight and preponderance of the evidence. itself, care, custody, to establish actual Watson v. 414-15 drugs.” or control of those Id. at 162. (Tex.Crim.App.2006). We note that a However, presence proximity, or when position inis the best to evaluate the credi- links, combined with evidence of other ei witnesses, bility of and we afford “due circumstantial, ther direct or can be suffi jury’s deference” to the determinations. beyond cient to establish that element a Marshall v. num reasonable doubt. Id. It is not the (Tex.Crim.App.2006). dispositive, ber of links that is but rather evidence, logical force of all of the pos

A person commits the offense substance, namely session of a controlled direct and circumstantial. stronger Appellant appellant's further verdict facts even asserts that co- instructed "on defendant, Davis, granted a motion for than those in case.” Hoang holding a exited his Honda a

Texas courts have set forth non-exclu- brown may paper lunch sack a manner that led him possible sive list of links that be suffi- cient, combination, did not contain singly to to believe the sack a sand- either or possession Hoang Dodge, of contra- wich. walked over to the person’s establish Dodge. n. 12. These links are: and Davis exited the band. Id. at 162 Appellant together greeted and Davis presence the defendant’s Hoang Dodge, outside the and then all conducted; search is Dodge. Hoang three men entered the in plain whether the contraband was stayed in for the vehicle about 30 seconds. view; Dodge, Hoang exited he was When proximity the defendant’s to and the longer empty-handed carrying the —no narcotic; accessibility of the then saw paper brown sack. Chiue the defendant was under whether Hoang’s Honda count- and another man the influence of narcotics when arrest- money. experience, Based on his Chi- ing ed; drug ue concluded that a transaction had possessed the defendant whether occurred. other contraband or narcotics when arrested; evidence that The State together greeted Hoang pellant and Davis the defendant made incrimi-

whether lot, parking them in the approached as he arrested; nating statements when being the car driven got all three men into attempted the defendant whether concealing their actions by appellant, thus flee; view, all three men remained in plain from made furtive whether the defendant seconds, Hoang then exited the car gestures; and without empty-handed the car there an odor of contra- whether sack, money and then counted with a com- band; to conclude he had panion, causing Chiue drug other whether contraband transaction. drug a hand-to-hand observed paraphernalia present; Further, Landry testified that after (11) whether the defendant owned Dodge, Lan- stop conducted a traffic of the right possess place the had the and found the sack dry opened the console found; drugs where the were the narcot- by containing described Chiue (12) drugs the place whether the where Thus, evidence presented ics. the State enclosed; found were narcotics, in located the center that the (13) the defendant was found whether console, conveniently accessible cash; large amount of driver, appellant, and that as the appellant (14) the whether the conduct of defen- car right possess or had the owned indicated a consciousness dant found. The the narcotics were where guilt. that, prior evidence State also car, console Here, exiting the center viewing the evidence Davis’s Id. verdict, in were located was Agent to the which narcotics light most favorable which, that, closed, coupled with conducting completely Chiue testified as he was Hoang’s suspicious behav- shopping center after the evidence of surveillance at ior, inference gives to a reasonable that the center was a rise receiving information in which the narcotics were activi- that the sack drug known location for transaction appellant before Upon him. see- located been visible ty, Hoang parked next to that lot, Dodge. Thé fact parking and Davis exited the ing appellant pull into the 1997, the narcotics were secured in in (Tex.App.-Texarkana pet.), the console no constitutes evidence an reviewing affirmative which the courts concluded that link—that the in support narcotics were secreted the evidence was insufficient to space. an enclosed conclude that convictions. appellants’ possession We facts, combination, these suffi- But the of those cases are distin provide facts in logical guishable, particularly cient force to in that none establish exercised control drugs over the narcotics and volved evidence that the transfer of relationship place presence his to them was more took in the defendant’s in Lassaint, than fortuitous. See Robinson v. 174 side his vehicle. In the narcot (Tex.App.-Houston speaker S.W.3d ics were in a in a car [1st secreted box refd) 2005, pet. (affirming posses- occupied by appellant. Dist.] that was not passenger sion conviction of front-seat no 743. There was factory truck where cocaine was located in ever exercised own truck, compartment ership back wall of or control over the car in which the noting that cocaine vicinity was within and narcotics were located or even of the knew easily passenger). speaker accessible to existence of the box where the Thus, narcotics were secreted. presence Dodge Davis does proximity narcotics were neither in close not render these links legally insufficient conveniently appel nor to the accessible (1) to prove exercised con- Kyte, lant. Id. at 744. In the evidence trol over the transporting substance it showed the narcotics were located (2) in his vehicle and knew the matter he view, mat, under the floor hidden from in a contraband, possessed was greet- from his a garage temporarily car that owner had ing Hoang, Hoang invitation to repaired loaned to the while he seconds, enter his vehicle for 30 and the her truck. 944 at 33. transfer paper bag of the brown had earned into similarly distinguish vehicle We the dissent’s re Poindexter, presence. See 153 liance on Roberson v. (“The S.W.3d at 412 mere per- (Tex.App.-Houston fact that a [1st Dist.] ref'd). Roberson, son other than might pet. the accused have the defendant joint possession premises of the does not was the driver of the vehicle in which require cocaine, only State to that the defen- police discovered but the oth contraband, dant possession had sole linking er evidence the defendant only that there are affirmative links be- cocaine his denial of a close relation tween the defendant and drugs ship occupants such to the other of the vehicle. he, too, that drugs knew of the the court in Ro con- Unlike record before them.”) berson, here, structively possessed (emphasis in that evidence exists (con- Evans, original); 202 at to appellant’s transfer of narcotics ve evidence, cluding place presence, that the circumstantial hicle took in his facilitated in inviting Hoang “when viewed combination and its sum into the back seat. total, amply constituted sufficient evidence concluding that the evidence this care, connecting appellant to the actual sufficient, we are mindful of legally case is narcotics”). custody, or control of Appeals’ the Court of Criminal admonition

In support legal sufficiency points, “[although parties may disagree of his appellant logical relies on Lassaint v. 79 about the inferences that flow from facts, (Tex.App.-Corpus undisputed per- S.W.3d 736 where there are two Christi evidence, pet.), Kyte no the fact 944 S.W.2d 29 missible views of the obviously not so weak that the evidence is them cannot be finder’s choice between Evans, clearly wrong manifestly clearly verdict is erroneous.” omitted) (revers- (internal quotations proof guilt against of is unjust, or that legal determination of ing appeals’ court of of great weight preponderance not insufficiency, holding that it was error Accordingly, we hold that the evidence. fa- light to view reasonable inferences factually support sufficient verdict). jury’s We conclude vorable to appellant’s conviction. trier fact could have that a rational doubt,

found, a reasonable beyond Appellant’s on State’s Comment the narcot- appellant knowingly possessed Testify Failure to we hold that the evi- Accordingly, ics. support appel- error, legally dence is sufficient point In his third lant’s conviction. trial court erred over- contends that the objection improp- after the ruling his neutrally, we rec- Viewing the evidence during argument its final erly commented not under the ognize was appellant’s trial on guilt stage in the narcotics, possess not influence of the did testify. Specifically, appellant failure to contraband, any in- other did not make following comment: complains of the statements, attempt not criminating did flee, gestures, and did did not make furtive THE FOR STATE:.... COUNSEL indicating a conscious- not exhibit conduct how do we counsel asked Defense also note that there is guilt. ness of We know, [appel- know that how do we any drug para- that there was no evidence bag? in that I knew was lant] what Dodge or on phernalia present dire that you in voir told back Landry confirmed that person. pellant’s always, just not in this Defendant present there was no odor of narcotics case, Fifth Amend- always has the car, also testified that but he him- testify against right ment narcotics, does ecstasy, unlike some other in this case he’s you’ve As seen self. Appellant odor. also strong not have if you But right.... exercised that amount of possession large was not in counsel is think about what Defense links that do not possible cash. Further how do we asking you to do is however, exist, the links that negate do not Lair know, what Mr. how do we know Evans, 202 S.W.3d at 164 present. are Well, top pop I can’t knew. (rejecting appeals’ court of determination Lair’s head. Mr. legal insufficiency that was based in improp- That’s DEFENSE COUNSEL: of links that “did not part on recitation testify. case”). failure to er comment on There was evidence exist registered not the own- Ladies and THE COURT: Overruled. undisputed it Dodge, er of the but was to take into you are not gentlemen, before and driver the De- whether or not consideration and at the meeting after his It the stand. chose to take fendant him a traffic stopped officers time the charge. in court’s you tell that will Hoang, invit- Appellant greeted violation. argument that this The State asserts seconds, and the him into his car for 30 ed jury argu- counsel’s by invited defense in drugs remained paper sack of brown stated, ment, is the he “[W]here which drove left and car as [appellant] knew what was that away. light supporting In of the evidence that bag. Ask to answer verdict, [the State] that that jury’s we conclude 589 question.... proof [ap- right Where is the that lant had chosen to exercise his not to pellant] bag?” testify, knew what was in that an comment improper constituted testify. failure to Roller appellant’s on See Analysis Error (Tex.Crim. State, 373, v. 375 518 S.W.2d falls jury argument Permissible comment, App.1975) (holding that State’s (1) categories: within one of four summa others, that know among “We still don’t (2) evidence; tion of the reasonable deduc what the motive was. still don’t know We (3) evidence; tions from the answer to full facts of this murder ... what the were (4) counsel; argument of opposing appellant’s within [a]nd [the counsel’s] it’s v. pleas law enforcement. Wesbrook blanks, you bring control to those but State, 103, (Tex.Crim.App. 29 S.W.3d 115 bring you,” won’t them to constituted im 2000); State, 207, Strain v. 126 S.W.3d 209 proper appellant’s comment on failure to 2003, (TexApp.-Houston no [1st Dist.] State, testify); Minton v. 162 Tex.Crim. pet.). Jury argument by the that State (1956) 760, 358, (holding 285 S.W.2d 761 to a testify refers defendant’s failure to comment, open up that “We cannot [the violates the defendant’s Fifth Amendment appellant’s] head and tell what was right against compelled self-incrimination. improper mind” constituted comment on State, 761, v. Bustamante 48 S.W.3d 764 testify); failure Sanders (Tex.Crim.App.2001); see also Tex.Code State, 1116, 123 Tex.Crim. 59 S.W.2d (Vernon 2005) art. 38.08 Ann. Grim. PROC. (1933) comment, (holding 1116 that “[W]e (“Any defendant in a criminal action shall you cannot tell whether this defendant permitted testify be in his own behalf not; knew that car was stolen or we can therein, but the failure of defendant to go split not over there where he sits and testify so shall not be taken a circum as an it open his mind axe and show to him, against stance nor shall the same be you” improper ap constituted comment on by alluded to or commented on counsel pellant’s testify). failure to cause.”). “To violate the right against self-incrimination, offending language reject the argument We State’s its jury’s must be viewed from standpoint Although comment was invited. the State implication and the that the comment re any legal authority did not cite for its ferred to the testify defendant’s failure to proposition that the State’s comments must clear.” be Cruz v. invited, our research indicates that (Tex.Crim.App.2007). 548 “It is applied that have rationale courts have sufficient that the language might be con distinguishable done so on facts from those an implied strued as or indirect allusion.” presented in the instant case. See Aitch v. Id. “The language test whether the (Tex.App.- manifestly used was intended or was of ref'd)( 1994,pet. Houston [14th Dist.] stat such a character that the nec would “prosecutor may refer to an ac ing essarily naturally take it a comment testify closing argu cused’s failure testify.” on the defendant’s failure to Id. ment when such comment is invited standard, In applying this the context in closing argument”). counsel’s defense which the comment was made must be Aitch, “suggested the defense counsel analyzed lan to determine whether proving no evidence State guage used was of such character. stolen, appellant knew the items were

Here, impossible conclude that the com- for the we State’s it was ment, “Well, I can’t Mr. pop top element offense.” added). head,” commenting appel- (emphasis Lair’s after On these 590 Here,

facts, potential testimony).” ap or appeals ings, the court of concluded that trial did not refer to or rebuttal, pellant’s counsel in which it commented the State’s in mention his client’s silence otherwise appel that it could not “walk over [the instead, and, making argument “merely his mind, up pull it out an open lant’s] proved an questioned whether State intent” and it could not “call element of the crime.” Id. We conclude stand,” by were invited the defense argument trial counsel’s appellant’s Similarly, prior comments. Id. counsel’s inviting prose not tantamount to “was State, appeals in Sanchez v. the court of appellant’s upon cutor to comment failure permitted that the concluded State was testify.” in respond to defense counsel’s comments have, sinuating that the State could but Harm, Analysis to, appel was in [the] failed “what case, In the trial court over (Tex. 791, 794 lant’s head.” 837 S.W.2d sustained, ruled, objection rather than ref'd). 1992, pet. App.-Houston Dist.] [14th comment, subjecting prosecutor’s to the State, Finally, in Zertuche v. defense coun analysis. a harm Archie the error to See you argued, sel “How can tell [the State] (Tex.Crim. State, 695, 221 v. 699 appellant’s] only intent when [the about State, Hawkins v. 135 S.W.3d App.2007); mind, person, only you, yourself, your 72, (noting that (Tex.Crim.App.2004) 76-77 intent, your only they say how can only analysis employed “a harm when it there is no possess the intent to analysis applies there is error” and state, evidence of his mental no evidence precedent cáses which consti federal 697, (Tex.App.-Cor all?” 774 S.W.2d rights implicated); are' v. tutional Harris ref'd). 1989, court pet. pus Christi (Tex.Crim. State, 568, 790 S.W.2d 587-88 that, response, the State was concluded App.1989). Because asserts comment, just got entitled to “Counsel improper on a defen the State’s comment through telling you that we did not show testify failure to feder dant’s violates both what the defendant’s state of mind was. arti privileges al constitutional as well as Well, Remember when he said that? how cle 38.08 of the Texas Code of Criminal possibly you can I show what his state Procedure, view the comment we State’s right mind is? He exercised his to remain Rule for constitutional harm under Texas silent.” Id. 44.2(a), Procedure and we Appellate here, regard The facts should reverse unless we determine be invitation, theory of are much dif State’s yond a reasonable doubt the error did comments, making appel ferent. not contribute to the defendant’s convic Tex.R.App. open lant’s counsel did not the door to P. punishment. tion or See 190, to comment on State, allow the State 44.2(a); Wimbrey v. ref'd). testify. failure to See Hunter pet. (Tex.App.-Fort Worth (Tex.App.-Amarillo effect the primary inquiry Our is what ref'd) may open that defendant pet. (noting had, had, have on reasonably may error or by “at door to such comments jury’s decision. Id. “We'consider away error, or tempting explain otherwise the extent source and nature of the silence,” significance of his its emphasized by minimize that it was weight “suggesting implications, that his silence somehow collateral probable [] error, juror place inference or probably entitles him to some beneficial would declaring it harmless would advantage,” “interject[ing] tidbits and whether other repeat it with likely encourage the State to knowledge, feel about his silent client’s

591 impunity.” Wimbrey, appear again 106 S.W.3d at 193. ment would in the trial requires “This us to evaluate the entire charge court’s The that the trial charge. neutral, impartial, record in a and even ultimately gave the jury court instructed manner, handed not in the light most fa jury right appellant’s the that it was not to the prosecution.” vorable appellant’s the and exercis- take stand that ing right this not taken into of could be Here, appellant’s knowledge posses- of against consideration him. The trial trial, sion of at narcotics was contested express court’s and at specific instruction with our dissenting colleague concluding prosecutor the time the made the comment in that the legally record this case is insuf- weighs finding in of favor the error to be possession. ficient to knowing This (assuming in of harmless. See id. trial weighs finding favor the error be prosecutor’s incorrectly harmful. The court overruled improper appellant’s com- ob- ment, however, jection was a small part of its to State’s comment on improper argument closing prosecutor did not appellant’s testify, failure to trial court —the make other of comments this nature. subsequently de-emphasized of importance the argument When State continued its comment, jury comment to with its “This the objection after the trial court’s argument. is It’s not evidence. Let’s ruling instruction, prosecutor the clari- on.”). jury presumed move to fol- jury fied that the was entitled to make instructions, low the trial court’s and thus reasonable inferences based on the evi- impact the the State’s comment and the dence to find that appellant had ruling trial negated by court’s was the knowledge possessed that he narcotics. State, instruction. See v. Colburn 966 511, 520 In (Tex.Crim.App.1998).

Although we have held the trial court light of the trial court’s instruction both at appellant’s objec- erred it overruled comment, objection the time of the jury tion to the the we note that immedi- ately overruling charge, after and the focus of the appellant’s objection, remainder court, sponte, closing the sua the ju- argument the State’s on the evi- instructed rors, ‘You permitting are not to take into consider- dence the inference of knowl- ation whether or edge, beyond not the we Defendant chose conclude a reasonable to take the stand.” The trial court further doubt the error did not contribute jurors reminded the appellant’s admonish- conviction.4 support 4. In say assertion that the State’s scene an indirect reference reversal, cites, requires comment jury appellant] to what the had not heard [the cases, State, among Norton, Shepherd other say v. at trial.” 915 S.W.2d at In conviction, (Tex.App.-Fort pet. S.W.2d 177 reversing appellant’s Worth the court ref'd), (Tex. statement, Norton prosecutor’s concluded ref'd), App.-Dallas pet. only people and Roberson v. "There were two there out them,” (Tex.App.-Waco 100 S.W.3d 36 we heard one from was direct ref'd), pet. distinguishable. appellant's testify all which are comment on the failure to Shepherd, reversing appellant’s In inflammatory con and "was so that the court’s viction, noted, regard the court disregard instruction to did not improper appellant's State’s comment on the cure the error.” S.W.2d at 346. Roberson, testify, reversing failure to that that the "error convic tion, repeated by prosecutor, prose court re court concluded that after the peatedly prosecutor change instructed cutor commented nev subject, committing the court’s [ ] instruction was not er denied the crime and after the strong especially jury, prosecutor an improper admonition to the continued com sustained, prosecutor’s argument ... ap [and] [t]he ments after the trial court appellant] pellant’s objections, say [the direct reference to what did the court could not 592 point edge, just part.” Appellant in did not third of overrule

We object up to these follow comments. error. closing argu The State cannot use on Matters State’s Comment get jury ment to before the evidence that Record Outside of and prejudicial is outside the record error, appel point fourth of his State, 638, Everett v. 707 accused. in trial court erred lant contends that the Arguments (Tex.Crim.App.1986). ref 641 objection overruling after the State erencing matters that are neither evi matters outside

improperly commented on nor from the evidence are dence inferable the Appellant complains the of record. passion usually “designed to arouse the argu emphasized portion following jury and as such are prejudices the by ment the State: highly Borjan v. inappropriate.” to got both out Testimony was that (Tex.Crim.App.1990); 787 S.W.2d 57 male that was greet [sic] the Asian State, 89 Thompson v. drugs, they got the and then bringing 2002, pet. (Tex.App.-Houston Dist.] [1st they What were back inside the car. 'd). However, ref the State is allowed wide think it is rea- talking you about? Do drawing inferences from the latitude say talking to about they sonable were “reasonable, fair, legiti are evidence that Is politics? any that make sense? Does good faith.” Shannon mate and offered they talking say it to reasonable (Tex.Crim. Now, talk- we’re about current events? App.1996). of a transac- ing 40 seconds worth about observed, here, potentially dangerous Here, tion it’s a accurately the State get in parties Both want to transaction. that in order for the to argument, its an narcotics transac- illegal out. Its point” knowledge at the “arrive about, they’re talking tion. jurors What need to appellant, would part infer, that you this for to is reasonable as to what “make inferences reasonable they money pay have the to did or did not know.” The appellant] [the bag they’re looking inside the drugs, and jurors to “make then asked the State they’re getting not whether or see Hoang arrived sense” of the evidence for, they’re paying to make sure as what sack, after at the center with the ... Asian male leaves soon as the greeted Hoang they entered the and Davis holding bag they’re standing there by appellant, all three being, car driven They bouquet of flowers.... with a little Dodge for 30 sec- men remained [sic], ecstasy want to make sure its offi- onds, empty-handed, left They’re they’re through bag. going recovered sack con- subsequently cers amount— making sure that the in the center console of taining narcotics added). In the appellant. driven objected being car (emphasis Appellant argument, the State of the above anyone no looked context testimony there was any it did not “have candidly conceded the trial court overruled bag, car, continued, being inside audio” as what was The State then objection. have of “the that it did going on in that but noted exactly what was “That’s of the transaction” over exactly [appellant] what result And that’s car. knowl- ecstasy pills. In order establish got knowl- privy to. That’s how we impact argument inappropriate did not persistence and that the "with confidence punishment phase.” 100 S.W.3d engaged in flagrancy State] which [the edge, Here, urged jurors make punishment appel- at the phase, reasonable inferences as to what going witness, single lant his sister- on inside the car. We hold that the Walker, State’s in-law, Tammy who testified permissible comment was as it constituted appellant was a father of two another with plea jurors a for the make to reasonable way, appellant child knew on she that deductions from the evidence. See Wes before, with had been trouble the law brook, 29 appel- she been around after jail lant couple years was released from a appellant’s

We overrule fourth issue. before, appellant working had been for a Ineffective Assistance trucking company doing and was now “hot delivery” shot van bought, appel- with a he error, In point his fifth appellant con- working steadily he lant had been since he tends that received ineffective assis- jail, tance of during punishment got counsel out had a common law phase Appellant of trial. that complains wife was pregnant, appellant sup- who only his trial counsel called one children, witness ported his and appellant spent a during punishment phase, provid- who girls. lot of time with his ed only testimony, brief and that trial his trial, Appellant moved for a new and interview, counsel to investigate, failed from attached affidavits almost two dozen present appellant’s other witnesses be- on witnesses, friends, appellant’s including half willing who were available and tes- to relatives, neighbors, and all of whom stat- tify. they ed appel- were not contacted In to prove order an ineffective assis- trial they lant’s counsel and that were claim, tance of counsel a defendant must ready, willing, to testify appel- and able on (1) show performance his counsel’s fell punishment stage. lant’s behalf at the In below an objective standard of reasonable- affidavits, these which were introduced (2) ness, and but for unpro- his counsel’s hearing into at the on the motion error, fessional there prob- is a reasonable trial, for new these witnesses averred ability that the proceedings result of the they ap- would have testified on behalf of would have been v. different. Strickland that, pellant they although were familiar 668, 687, Washington, U.S. 104 S.Ct. law, ap- with troubles with the 2052, 2064, (1984); 80 L.Ed.2d 674 Vas pellant was always willing to help people, (Tex. quez 830 S.W.2d spending loved “countless hours” A Crim.App.1992). probability reasonable children them his and worked with “probability is a sufficient undermine improve their grades get them in- Strickland, confidence in the outcome.” activities, appellant’s volved in school main 466 U.S. at In 104 S.Ct. at 2068. children, appellant concern was his reviewing performance, counsel’s look we personable, intelligent, capable, appel- totality representation helped neighborhood, ap- lant around his counsel, in determine the effectiveness pellant honesty through demonstrated dulging strong presumption per that his specific giving generous acts and a na- formance falls within range the wide ture, appellant worked hours to countless reasonable professional assistance or trial family’s daily needs, support strategy. Thompson v. pellant “very was a hard worker.” These (Tex.Crim.App.1999). Further more, they a claim must further would ineffective assistance witnesses testified be firmly supported in the jurors record. have asked the to show Moreover, in addition to those six to ten

mercy great father and because he was friend. who the courtroom and people testify, were at least available to there affidavits, appellant to these addition I people dozen or so whom nei- another counsel, an affidavit from his trial attached nor called I ther interviewed whom in which his trial counsel conceded that testify knew were also available to on only testify appel- one called witness punishment [appellant’s] at the during punishment phase. lant’s behalf behalf stage. Appellant’s trial counsel further stated although he knew that there were six my failure to call those I believe that in the people present to ten trial other who were the courtroom and people the testify day court and available to on of to testify my as well as failure available punishment hearing, the he neither inter- and call those other wit- to interview nor called these additional wit-

viewed I am also nesses of whom now aware to testify of his concern nesses to because stage [ap- at of testify punishment the the they by would be cross-examined jury’s trial pellant’s] contributed history. criminal appellant’s State about prison a 70-year assessment of term. affidavit, However, appellant’s in this trial added). (Emphasis question called his own deci- counsel into hearing, At the motion for new trial the to sion-making regard to his failure affidavit presented State another from call or even interview these other wit- counsel, pellant’s trial in which testified, he offered Appellant’s trial counsel nesses. testimony testimony contradicted the could have cross-ex- Because affida- his first affidavit. this second [Tammy] regard amined Walker .in vit, trial that he appellant’s counsel stated testified, not, but and be- when she did to on his decision not “want[ed] elaborate jury [ap- of cause the was made aware to call additional witnesses.” He further he pled pellant’s] prior convictions to call them, stated that he decided not additional given impor- “true” it have cu- evidence witnesses “because would been presenting mitigating tance of testimony humanizing of and he [appellant’s] behalf mulative” Walker’s I eyes jury, him in the of believe all that testimony] was was [Walker’s “felt presenting there was no downside to necessary [appellant’s] He help case.” punishment additional witnesses. these witnesses further noted that additional I it for the believe that was critical would have asked about been these defense to have addi- same offense previous conviction mitigation punish- tional witnesses years, to 50 for which he was sentenced [appellant] ment and humanize assist- and he did not “feel this would have eyes them that jury showing case.” [appellant’s] ed relatives, his friends and people, these pres The decision whether to testimony him. deeply

cared about trial largely a matter of ent witnesses jurors if these witnesses essential State, Shanklin v. 190 S.W.3d strategy. seriously my request were to consider 154, (Tex.App.-Houston [1st Dist.] they end of the consider low dism’d). “Moreover, 2005, an attor pet. my I punishment range. believe that particular ney’s present decision not pun- not to call these additional decision stage may be punishment at the witnesses who were available ishment witnesses if the attor strategically a sound decision trial reasonable strate- not based on it on a determination ney bases gy- testimony of may 50-year the witnesses harm As con- prior be sentence. counsel ful, affidavit, than helpful, rather to the defendant.” ceded in his first the importance humanizing Id. v. out- (citing Weisinger 424, fact weighed the that the State have (Tex.App.-Houston could [14th Dist.] ref'd)). 1989, acknowledge “However, each of witnesses pet. a failure to appellant’s prior felony conviction. We present uncover and mitigating conclude that counsel’s failure to investi- justified cannot be tactical decision gate punishment and call additional wit- when defense counsel has not conducted a performance. nesses amounted to deficient thorough investigation of the defendant’s Shanklin, 190 See background.” (citing Wiggins v. Smith, 510, 521, 2527, 539 U.S. 123 S.Ct. prej must now determine We (2003); 156 L.Ed.2d 471 Rivera impact udicial of defense counsel’s defi 31 (Tex.App.-Hous performance prong cient under the second ref'd)). ton pet. [1st Dist.] Counsel Strickland, specifically whether there is is ineffective when investigate he fails to jury’s probability reasonable potential punishment and interview wit punishment assessment of in this case nesses, despite availability their and will would have been less severe the absence ingness testify behalf, appellant’s performance. of defense counsel’s deficient only counsel can make a deci reasonable Strickland, 694, Id. (citing 466 U.S. at 104 forgo sion to presentation of mitigating 2068). Here, at we al S.Ct. note that evaluating evidence after testimo available though trial counsel appellant’s ny and determining it would helpful. not be testimony, lack Walker’s it was brief and State, (Tex. 267, Milburn v. 15 270 ing in the detail and information that the App.-Houston ref'd). [14th pet. Dist.] additional witnesses would have offered. Even appellant’s stated, trial counsel his

Here, appellant provided affida closing that, argument, really “None of us vits from over twenty witnesses, including know [appellant]. [appel You don’t know appellant’s mother, relatives, neigh I [appellant].” lant]. don’t know Interest bors, ready who were and willing testify ingly, appellant’s trial counsel went on to on appellant’s behalf at punishment the state, people [appel “The know [sic] hearing, by but were ap never contacted here, out family lant] are all his pellant’s trial Significantly, ap counsel. got friends. He’s a lot of support. pellant’s trial first counsel’s affidavit estab They’re they think here because he’s lishes he did not even interview these good person. They’re they here because witnesses, let alone present their testimo can salvaged think his life be de to a ny fact, at punishment hearing. the This ” And, gree yet, .... coun appellant’s trial by which was not contradicted appellant’s sel failed call wit to interview and these affidavit, trial necessarily counsel’s second they ready, nesses who averred that were subsequent defeats counsel’s representa testify willing, and able to on appellant’s tion that the of testimony these additional behalf. merely witnesses would have been cumula since, tive conducting without sort At the the punishment conclusion of investigation testimony, into hearing, Appellant’s their he could trial ad- after counsel whether testimony jurors really know was cu mitted that neither he the nor Moreover, note, mulative not. or we as knew appellant, requested he sentence of affidavit, counsel first years. requested admits his 5 to 10 The State jurors already appellant’s jury exceeding aware of return a sentence

596 appellant, Brandon Kirk previously the conviction of appellant had 50-year sentence Lair, of a felony possession conviction. offense prior for his received substance, namely methylenedi- years, of 70 jury returned a sentence controlled The (commonly applicable range methamphetamine of 5 referred high oxy end of the “ecstasy”), years weighing the 50 years higher than as “MDMA” appropriate grams.1 4 and 400 suggested the State as an between appellant’s punishment. starting point for majority’s decision and the reason- The recognized in As appellant’s trial counsel opinion is in contradiction of well- ing in its affidavit, his he the testimo- first believed application sound settled law and our ny appellant’s punishment additional from v. links rule Roberson to humanize appel- was critical witnesses (Tex.App.-Houston [1st and was es- mitigation purposes lant for ref'd). 2002, pet. majority, al Dist.] jurors seriously sential in order for significantly erodes unwittingly, beit end for the low request consider by rule affords protection that the links punishment range. solely upon from standers conviction based probabili- that a reasonable We conclude proximity to another’s contra fortuitous ty would exists sentence band. See Poindexter bal- less severe had have been According (Tex.Crim.App.2005). testimony from addi- mitigating anced ly, respectfully dissent. I Thus, appellant has tional witnesses. actually substan-

shown Background Factual by his defense counsel’s tially prejudiced Investigation Special Bureau of Federal present mitigating failure to seek out Chiue, working on an who was Agent John from these witnesses. character evidence crime task force officers organized id.; Milburn, Ac at 271. See tes- Department, Houston Police from the we hold that received cordingly, he information tified that had received punishment in the ineffective assistance center, a contained strip shopping a which phase trial. bar, spot” for was a “hot pool hall and fifth issue. sustain We 21, 2006, September On activity. criminal at p.m., surveillance 9:00 he conducted Conclusion center, and, as he sat in his shopping the portion judgment reverse the We center shopping park- in the unmarked car punishment, judgment affirm the imposing male, lot, an later Chiue saw Asian ing the cause respects, in all other remand green a Hoang, park identified Son punishment hearing. for a new car. next to Chiue’s space Honda he then saw explained that Agent Chiue JENNINGS, dissenting. Justice “he had a sand- exit Honda and Hoang JENNINGS, Justice, TERRY sack, wich, sandwich of like a brown kind dissenting. vehicle, a sack, and he walked over lot.” The sack parking was in the that which majority erroneously concludes The Chiue, had to look who up.” the was “wadded by the State to the evidence he saw positioned, from was behind where support sufficient legally below (Vernon 2003). 481.116(d) Safety See Ann. & Code Tex. Health (Vernon 481.103(a)(1) Supp.2007), §§ Hoang males, Dodge. approach two later came from the He admitted black also Davis, as appellant “anything” identified and Tristón could have been delivered Dodge who exited a in the brown sack and Magnum, had red sandwich sack, delivery by itself, parked lengths which of the could be was about six car criminal away consistent with both innocent and Although from Chiue’s car. Chiue’s activity. “partially view point, was blocked” at this Chiue all Dodge. saw three men enter the that, on the Sergeant Landry testified seconds,”

After “approximately 30 Chiue night question, parked he was block one saw exit the “from Hoang Dodge the back- north of the lot when saw the parking “empty seat” return to his Honda males, Dodge, occupied by pull two black the Dodge handed.” men in then parking into the center’s lot. He received later,” A away. drove “short time another a Agent radio communication from Chiue pool Asian male came out of the hall parking what happening about Hoang’s Chiue, entered Honda. who was and, lot, Dodge parking left the them, parked right next to then saw lot, Landry police and other officers fol- second Asian male who entered it for ten fifteen After lowed minutes. Hoang’s counting “paper money.” Honda Dodge a the driver of the committed traf- violation, fic in a patrol officers marked car observations, Agent

Given his sus- Chiue stopped Dodge. pected may narcotics transaction have occurred because had been police officers asked appellant, When carrying the brown sandwich sack “wad- Dodge, get who was the driver ded up” and was not carrying the sack as car, out appellant “immediately” might usually one carry sandwich. instructions, complied with the officers’ opinion, Chiue’s this conduct was consis- they placed appellant in the rear of tent awith drug “hand-to-hand transac- hand, car. patrol their On other tion.” He radioed Houston Ser- Davis, Police officers had to ask who was the geant Landry, Michael who working passenger Dodge, “several times” to Chiue, with and told him that a narcotics complied. Sergeant exit the car he before might transaction have occurred. Landry “very noted that Davis ner- vous,” and, got Dodge, out of Davis the cross-examination, On Agent Chiue console,” hit “his elbow the which was agreed random, that his surveillance was the seats. console between bucket Davis, he had appellant, never heard of or then “clicked as if it had not shut been Hoang, he did happened and not see what the completely.” Landry opened then con- Dodge. inside the He conceded that he sole found a sack as brown sandwich did anything change not see hands while by Agent described Chiue. Inside the Dodge. the three men were in the Chiue sack, Landry bags plastic found three con- did not in- see “touch” or “look taining pills, blue which were later con- sack, side” any the brown hand over mon- ecstasy weighing to be pills, firmed 1000 nervous, ey, dangerous act drive in a man- approximately grams. 288 ner, a telephone beeper. or use cellular or money He also not Contrary Agent testimony, did know where the to Chiue’s cross-examination, that the Landry, he saw second Asian male count Sergeant on Hoang’s actually Spe- Honda understanding, came from. testified that it was his cifically, money Chiue conceded that the Chiue’s to based on radio communications pool him, Hoang could come from have the hall that Chiue did not see enter Rather, money that testify Dodge. Hoang he could not that the the Chiue saw “would know what was “through hand sack think the brown sandwich car in a passenger’s Landry agreed the of the into vehicle.” coming window” his “15 transaction that lasted between to Dodge registered the to another seconds.” that, person, but maintained because car, pellant custody had care and of the that he did

Sergeant Landry conceded appellant was owner of the car at that appellant Davis knew not know whether or point in time. transaction, appellant their before driving dangerously, Landry was not appellant or Davis did not believe that Standard of Review they followed being knew that sufficiency legal review the We police agreed officers. He further by viewing evidence the evidence patrol car activated

when the officer in light de- most favorable the verdict to pulled emergency lights, his any trier fact termine whether rational over, instructions, followed did the officers’ have found the essential elements could appear not to be under the influence of a beyond reasonable flee, offense doubt. narcotics, any attempt not did Vodochodsky 158 S.W.3d “promptly” “courteously” complied (Tex.Crim.App.2005). Supreme The Texas get officers’ instructions to out of that, has the well-settled Landry explained car. further conceded Court law Davis, compared appellant appeared sufficiency re- must a or legal that we sustain Landry laxed. not see make challenge did if “no-evidence” record movements, any put (1) or furtive hands a following: complete one shows console, touch the anything fact, (2) or of a rules absence of evidence vital Moreover, although brown sack. sandwich bar the from of law or evidence court Hoang’s fingerprints were found weight only giving offered sack, plastic bags inside (3) fact, of- a vital the evidence prove plastic on the fingerprints were not found no more than a vital fact is fered bags. Landry agreed ecstasy also (4) scintilla, a or the evidence establishes Although does not have a odor. distinctive fact. conclusively opposite of vital telephone, cellular appellant had one Wilson, Keller v. City of weapons, have or a beepers, did not (Tex.2005). does exceed Evidence large amount cash. than a if it does no more create scintilla fact suspicion3 mere surmise2 Landry also conceded that he Sergeant 135 Ridgway, Ford Motor Co. v. exists. had heard that anything prove not (Tex.2004). 598, If the evi- 601 any negotia- pellant participated had at trial enable reasonable dence would that had tions with or in their conclu- people fair-minded to differ even touched or looked inside of brown do sions, jurors must allowed to then be the narcotics. sandwich sack that contained ’ Keller, at 822. City so. 168 S.W.3d if any had reason to be- When asked he of However, only undisputed if facts allow lieve that knew what was in the inference, jurors nor sack, logical neither Landry responded that one reviewing may disregard those Dodge of that he court the owner would feeling "a or supposition "Suspicion” 3. defined as is as "a is "Surmise” defined true, something may though something likely, is thought possible, be even there or is at 1712. true.” Id. no it.” The New Oxford confirm (2001). 1710 Dictionary American

599 Id,.; State, thing possessed or is aware of facts. see Evans v. 202 S.W.3d ceives the 158, 162-68 (Tex.Crim.App.2006). time thing his control of the for a sufficient permit him to terminate his control.” review, conducting sufficiency In a legal 2003). 6.01(b) (Vernon Accordingly, § an appellate court must be mindful that a substance possession in a of controlled judge the trier of fact is the sole of the (1) the State must prosecution, credibility weight and of the evidence. control, manage- the accused exercised State, Margraves v. 34 S.W.3d 919 (2) substance, ment, care or over Thus, (Tex.Crim.App.2000). per pos- knew that the matter the accused review, forming may the court Evans, a controlled substance. sessed was weight credibility reevaluate the of the at 161. 202 S.W.3d judgment evidence and substitute its Dewberry fact-finder. v. Here, although appellant was the driver (Tex.Crim.App.1999). 4 S.W.3d Dodge of the in which the brown sandwich The court must resolve inconsistencies found, containing sack the narcotics was he in the evidence in favor of the verdict. possession not in of the car. exclusive (Tex. Curry present Dodge Davis was also as Crim.App.2000). passenger, also seated next to the console sack, containing actually the brown Legal Sufficiency car. upon exiting contacted the console eiror, point his first ar- circumstances, In such has ex- Court gues that legally evidence is insuffi- plained, support cient to his conviction because the When, here, the accused is not in no evidence that he exer- possession place exclusive where care, control, custody, cised manage- or found, must addi- contraband there be ment over the narcotics or that he knew independent tional facts and circum- the brown sandwich sack contained narcot- affirmatively link the [ac- stances which ics.4 way such a cused] contraband in A person posses- commits the offense that it can be concluded that the accused sion of a controlled substance an amount knowledge the contraband and grams of more than 4 than but less control over it. ... An affir- exercised if grams, knowingly intentionally or generates link one [is that] mative possesses the controlled substance in the reasonable the accused inference amount, prescribed by aggregate weight, knew the contraband’s existence and including adulterants or dilutants. See over it. ... Proof of exercised control Safety Tex. Health & Code Ann. link an affirmative between the accused (Vernon 481.103(a)(1) §§ Supp.2007), mainly and the contraband is needed 481.116(d)(Vernon 2003). knowledge establish or intent. care, “Possession” means “actual custo- (citations Roberson, control, at 735 omit- dy, management.” Tex. Penal (Vernon ted) added). 1.07(39) short, § In Supp.2007). (emphasis “[w]heth- Code Ann. Moreover, circumstantial, possession “if direct or voluntary is a act er this evidence is establish, possessor knowingly requisite obtains or re- ‘it must level of court, Appellant stronger 4. that the trial after the even than those in case.” not found (7) The cocaine was gestures. rested, attempted the accused whether twenty in narcotics were passed until almost minutes had ter console which the closed, got completely appellant [the since out of the car at located was not which, coupled the Trooper’s] request, while Lee and evidence [the behavior, gives rise passenger] Hoang’s suspicious second remained inside dur- the sack ing much of that time. No statements to a reasonable inference any the narcotics located had by were made of the three connect- in which were to and Davis ing drugs. the been visible [Roberson] before Dodge. exited the The fact that concluded, Accordingly, Id. we console, narcotics were secured short, presented the State has a col- therefore, evidence of an al- constitutes factors, potential linking lection of each ternative link—that the narcotics were might suspicion of which raise but is space. in an enclosed secreted provide insufficient its own to added). adds, required (Emphasis majority ... link The between factors, the cocaine. These even when presented evidence that [T]he together viewed light most favor- pellant together greeted and Davis verdict, able to the do not create the Hoang approached as he them in the logical necessary force a ration- allow lot, all parking got three men into the find, juror beyond al a reasonable being by appellant, car driven thus con- doubt, knowledge view, cealing plain their actions from all presence of cocaine. three men remained in the car for 30 seconds, then exited the car sack, empty-handed and without case, In the instant the State asserts causing Chiue to conclude he had ob- “(1) that the conveniently narcotics were drug served a hand-to-hand transaction. (2) appellant, accessible to the in a vehicle care, custody[,] under the and control of added). (Emphasis majority The con- (3) appellant, found the console next combination, facts, in cludes that “these (4) appellant, found secreted in an provide logical sufficient force to establish space.” enclosed Without any citation to appellant exercised control over the nar- supporting authority,5 the State thus con- cotics and his contact was more than for- cludes that “the could reason- [have] added). (Emphasis This conclu- tuitous.” ably inferred] exercised sion, conclusion, like State’s based control, management, or care over the sub- upon assumptions merely suspi- raise stance and knew the possessed matter cion.

contraband.” Here, that, the bottom con- line is majority, emphasizes, likewise during argument, ceded the State oral presented absolutely

[T]he State evidence that the there is no evidence the rec- narcotics, console, located the center that appellant ord ever looked inside of the conveniently sack, appel- accessible to brown sandwich ever touched the driver, sack, lant that appellant, anything placing as the or had to do with right possess Agent owned or had the the sack into the car’s console. car simply position where the narcotics were found. was not in a to hear Chiue that, anything The State also what inside of happened see car, Thus, prior exiting Dodge. testify to Davis’s the cen- could not Chiue Although argu- supporting position, law its State was invited at oral discuss case provide post-submission briefing ment to the State has not done so. testified, ever, Landry Sergeant nor as after Hoang gave appellant, that the sack to say “immediately” appellant anything appellant complied hear to with the did Chiue that knew that the sack prove appellant police instructions of officers to exit the car, contained narcotics. Davis was alone the car with the Here, following exchange narcotics. Yet, majority and the conclude State Landry occurred: between the State that the facts of this case establish stops The vehicle and what do [State]: control over appellant knowingly exercised you next? [do] the narcotics in the brown sandwich sack. contra-

This conclusion stands direct get the driver to [Landry]: We asked Roberson, to in which we held diction of the vehicle and then we asked out amounting only strong to “[pjroof such of the vehi- passenger get to out suspicion probability or mere will not suf- cle. Agent if fice.” 80 S.W.3d at 742. Even they comply? Did [State]: suspicion may have had reasonable Chiue [Landry]: passenger driver —the Davis, and temporarily appellant, to detain immediately got out of the vehicle and mean that the State’s Hoang, this does not patrol rear of the placed prove to legally evidence is sufficient get was asked to passenger car. The knowingly exercised control over times out the car several before the narcotics in the sack. comply. would considered, objectively the State When added). cross-examination, (Emphasis On only factors that could has two elaborated, Landry (1) link to the narcotics: possibly you And then when [Defense counsel]: possession of the car [appellant] get out of the car asked (2) found, and the narcotics were which ..., promptly and he did it he did car, was in appellant, as the driver of the courteously? access to

very proximity close to and had Yes, [Landry]: sir. in which the brown sandwich console you And said he counsel]: [Defense containing the narcotics was found. sack to be relaxed? peared Roberson, However, as we stated with- car, control of the the mere [Davis], out exclusive yes. [Landry]: Compared a vehi- driving fact that “a defendant was no furtive He made [Defense counsel]: narcotics,” itself, is not containing cle you movements that saw? to sustain a conviction for legally sufficient saw, no, [Landry]: That I sir. Id. at 736. possession of the narcotics. attempted He never counsel]: [Defense Thus, nar- without other links to the in that anything his hands or put cotics, un- logical force of this link is console, right? dermined. I [Landry]: Not that saw. appellant, the fact that regard to him never saw You [Defense counsel]: driver, was close to and had access bag, cor- touching paper that brown sandwich the console in which the brown rect? found, containing the narcotics was sack No, [Landry]: sir. link is undermined logical force appellant, police In stark contrast fact that the did not by the “very Davis had to ask a nervous” in the con- officers placed the narcotics were and, Dodge, be- times to exit suspect several might sole. One did, “elbow hit the finally fore he Davis’s in the console. How- placed the narcotics and that presence, and in his partment console,” if it had not and it “clicked as care, custody, and completely.” clearly This is an undis- he exercised been shut he that the was not entitled puted fact over the contraband control in the Davis was alone ignore. Because drugs in the console the either secreted gotten out Dodge appellant after secreted. drugs the to be or allowed placed into the Dodge and was then added). First, Agent did Chiue (Emphasis car, inferred logically it cannot be patrol “actually” Hoang testify saw not containing sack that the brown sandwich com- passenger into the deliver narcotics ap- console when narcotics was had, that Dodge. If he of the partment Moreover, the Dodge. in the pellant was not possession, establish Davis’s would gesture, Davis made a furtive fact that fact, that he testified Chiue pellant’s. sack, by closing to conceal the apparently inside of happened what had could not see console, not, by the does as asserted Hoang, testify that he saw car. He did inference that majority, support logical a up” brown sandwich carrying a “wadded narcotics were lo- “the sack which the sack, appellant and Dodge with enter appellant cated had been visible before Dodge exit the and then saw Davis impor- More Dodge.” Davis exited the approximately after “empty handed” evidence tantly, there is still no seconds. in- appellant knew what was record the sack. There is also no evidence side Second, not “observe” Agent Chiue did support logical that would a inference large paper wad of Hoang “counting “in an appellant “secreted” the narcotics examination, car.” On direct money only logical infer- space.” enclosed The testify as follows: Chiue did undisputed supported ence in the gets Asian male Another [Chiue]: Davis, concealed the appellant, is that vehicle, right next they’re parked sack in the console of brown sandwich them, me, looking I was down had exited the Dodge after counting money. they were car. patrol Dodge placed you see denomina- Could [The State]: Nevertheless, contends that tions of the bills? connection the narcotics money. They paper It was [Chiue]: brief, than fortuitous.” In its “was more you count counting just it like were that, the State asserts money. paper drugs Agent actually Chiue observed the passenger into the com- being money delivered big a wad How [The State]: occupied by the partment of the vehicle talking are we about? friend and appellant along with his they you; but I couldn’t tell [Chiue]: thereafter, Asian shortly observed the counting it like they just were— counting delivery male involved in money. paper money in his car. large wad of added). cross-examination, On (Emphasis in the con- bag secreted paper testimony, previous clarified his Chiue who located next to sole jury could reason- was the driver. The And then another counsel]: [Defense from these circumstances ably infer pool hall? male came out of the Asian escaped could not have Correct. [Chiue]: transac- knowledge drug of the having into the Accord? Got counsel]: [Defense the small en- tion that occurred within Correct. [Chiue]: com- passenger closed confínes you And at that time show that knowingly [Defense counsel]: exercised care, control, money being custody, saw some counted? management over the narcotics the brown sandwich Correct. [Chiue]: sack, relies, majority parenthetically, counting [Defense Who was counsel]: Evans, 166; Poindexter, 202 S.W.3d at money? 405; 153 S.W.3d at and Robinson The second male that came out [Chiue]: (Tex.App.-Houston pool hall. ref'd). 2005, pet. These cases [1st Dist.] All right. you So [Defense counsel]: are not here. applicable money don’t know if the came from majority first cites Robinson for Hoang, person Mr. that “affirming possession conviction of [the] [a] proached [Dodge], you the red or passenger front-seat in truck [a] where money don’t know if the came from in factory cocaine was located [the] [a] hall, person pool right? in the in compartment back wall of [the] [the] I [Chiue]: don’t know. truck, noting that [the] and cocaine was added). Thus, (Emphasis ar- State’s vicinity easily within and [the] accessible based, gument part, premis- in on false passenger.” [the] See S.W.3d at 326. es. However, significant there far more was Third, assuming Agent even that Chiue linking Robinson the contra- actually Hoang “counting large saw a wad band. emphasized, We money” car handing after off the summary, passen- In was a [Robinson] paper Dodge, brown sack in the ger transporting in a truck found to be would, best, support suspicion Chiue’s two kilos of more than cocaine worth one Hoang engaged had in a narcotics million dollars. The cocaine was located presence transaction. Given the of Davis enclosed, space an unlocked Dodge, in the the State’s evidence does not truck, back of a concealed under a shirt. prove Hoang actually sold the narcot- Houston, traveling was from [Robinson] appellant. ics to it prove Nor does major point, a cocaine distribution care, custody, exercised “actual days— claimed to been there have two control, management” over the narcot- an time that conflicted amount of ics. Nor does it even carried account—but none [the driver’s] any knowledge of what was inside the overnight stay, of the for an necessities brown sandwich sack. clothing. such as a toothbrush or fresh Finally, by during as conceded the State [the Neither nor car- [Robinson] driver] argument, Agent oral Chiue did not see identification; any [the ried driver] happened Dodge what and Chiue driver, not a licensed but stated that spoken did not hear word between inwas fact a licensed driver [Robinson] during and Davis supposed driving. [The and was to be together. their 30 seconds As further con- gave conflicting accounts as to driver] ceded it no evi- truck, ownership of the and he and dence that ever touched the gave conflicting accounts re- [Robinson] sack, sack, brown sandwich looked into the garding trip their to Houston. More- anything placing or had to do with over, magazine for a semi-automatic sack into the car’s console. handgun plain was found view on the holding the evi- console between support [the driver] [Robin- of its son], and, trooper] asked legally [the dence this case is sufficient to cocaine, razors, was, crack vials used to make weapon where the [Robinson] con- Id. at 411-12. The handgun baggies, reached toward loaded and a scale. by a on the of the cealed shirt floor Appeals conclud- Texas Court of Criminal truck. The could have found that all that the value of probative ed relative protection for the handgun was evidence, “including hearsay the cocaine. evidence,” legally sufficient show care, custody, that Poindexter “exercised Id. at The links established in Robin- control, management over contra- logical together force taken son and their how it was contraband. precisely serve to show weak the band” “knew” case, course, Here, not the State did not State’s evidence is instant at 412. that appellant knowingly anyone “exercised con- to establish present evidence from his trol over the narcotics and contact was direct control had such over more than fortuitous.” or that he bag the brown sandwich even of it. knew what was inside majority

The next cites Poindexter the mere fact that a proposition “[t]he relies on Finally, majority and the person than the accused have might other proposition for the that the quotes Evans joint possession premises not does Evans, here, inas circumstantial evidence require defen- State evidence con- “amply constitutes sufficient possession dant had sole the contra- care, necting appellant to the actual custo- band.” at is See 153 S.W.3d 412. This dy, narcotics.” See 202 or control of true, certainly it not but does contradict However, the Texas Court appellant’s point, which is that the Appeals of Criminal summarized case circumstance, in present such a must suffi- against Evans as follows: cient to link such an evidence accused single The that the most argues State Poindexter, the contraband. the State between important link or connection presented evidence that after a confiden- grams co- and ... fourteen [Evans] tial purchased informant cocaine from Po- simple caine is the that he rocks fact house, police indexter at a officers execut- directly in them. sitting was front aed search warrant at the to seize house reach; arm’s the cof- They were within Although narcotics. Id. at 404. another away. than a foot fee table was less person had seen in the been house and extremely two This evidence constitutes present not Poindexter was the offi- strong “presence” “proximity” links. warrant, cers pre- executed the merely in a present [Evans] was hearsay unobjected sented away drugs house with cached some- from one of the officers that the confiden- where, right under his nose. they were tial informant had told the officers that drugs plain view—a third were in possessed and sold Poindexter cocaine link. He was alone in the house —a where in Poindexter hid cocaine his immediately fourth He admitted link. Moreover, house. 407-11. the co- Id. at police had why that he walked knew plain caine in view “recov- was found “Drugs.” That is fifth in only ered a hidden location from accessible door— link. He mail at 923 Lombra- received one control who exercised over no, inference raising thus a reasonable house.” at 409. Poindexter resided at there, which, turn, that he raises lived house, the cocaine accessible that he actu- reasonable inference Poindexter, only and the officers found not care, control of custody, al items cocaine, manufacturing pack- but coffee materials, found in view on the table. aging including glass plain tubes or This is a sixth link. He had found to contain narcotics in the $160 console of pocket, twenties appar- but he was the car' near the However, driver’s seat. ently seventh, unemployed. This is a because did not have exclusive weak, albeit link. argues The State car, control over the merely fact raises the sum total of .this circumstantial evi- Roberson, suspicion. See id. inAs there dence is sufficient to support a rational nothing else to link appellant to the jury’s finding, beyond a reasonable narcotics. The narcotics were not found in doubt, that appellant exercised actual plain view where one would know their care, control, custody, management of presence. Appellant was not under the the fourteen grams of cocaine on the influence of narcotics. No narcotics of agree. coffee table. We kind, drug paraphernalia, or money was Evans, 202 S.W.3d at 163 (emphasis add- person. found on his There was no drug ed). Clearly, strength of the links in Appellant odor the car. coopera- Evans way comparable are no throughout stop tive and made no fur- purported links in the instant case. Evans gestures. engage tive He did not in con- does not support majority’s conclusion duct indicating a guilt consciousness of and legally the evidence here is sufficient did not attempt destroy to conceal or evi- support appellant’s to conviction. Appellant dence. did not attempt to flee escape or fact, incriminating made no state- each case upon by relied ments connecting himself to the majority to narcotics. support its conclusion—Robin- Moreover, son, Poindexter, appellant present was not in the actually un- Evans— Dodge when the dermines narcotics were found after its conclusion. None Davis hit strong the console of the car with significant present links Here, those his elbow as if to present cases are here. close the console. Robinson, contrast to the State did not Roberson, As in the State has present evidence of facts inconsistent with “potential linking some factors” which any statement appellant. Appellant “might raise suspicion” but do not have the Davis did not give conflicting stories to logical necessary link actually force to Sergeant Landry plans about their travel pellant to the narcotics. See id. Even or ownership question. of the car in Nor together light viewed most did have a firearm in the Dodge verdict, favorable to the the factors relied protection” “for the of narcotics. In con- upon by logi- the State “do not create the Poindexter, State, here, trast did cal necessary ju- force a rational allow present evidence from a confidential find, doubt,” beyond ror to a reasonable informant hid narcotics care, exercised actual custo- specific Finally, location. in contrast control, dy, or management over the nar- Evans, presented no evidence cotics or even knew that the brown sand- that narcotics were in plain found view of wich sack contained narcotics. See id. “sitting while he was directly front of them.” Accordingly, I would hold that the evi- Roberson, legally dence is support ap-

As we noted in insufficient to “possession pellant’s being pos- means more than conviction of the offense of where the action Moreover, is.” 80 at 742. session of a I “[p]roof controlled substance. would amounting only strong suspicion sustain first issue and reverse probability mere judgment will not suffice.” Id. of the trial court and render Here, appellant judgment was the driver of a car acquittal. con- majority’s conclusion to the contradiction of the well-

trary is direct our in Roberson. holding law and settled waters majority’s opinion Unwittingly, that it is point rule to the down links meaningless significantly nearly the links rule protection erodes the based bystanders affords “from conviction proximity ... solely upon fortuitous Poindexter, someone else’s [narcotics].” at 406. HOUSTON, The UNIVERSITY OF Appellant, BARTH, Stephen Appellee. No. 01-06-00490-CV. Texas, Appeals Court Dist.). (1st Houston July 2008. Rehearing Oct. Overruled notes Davis, 262nd State had the same evidence in the State v. No. codefendant, Davis, Court, Texas, County, granted Harris the Hon- trial of his District Mary presiding. Davis’s motion for instructed verdict "on facts orable Bacon (8) flee, accused made fur- confidence, whether the the accused’s connection (9) whether there was an gestures, tive just fortui- more than drug with the was ” (10) narcotics, of contraband or odor Poindexter, 153 at 405-06. tous.’ par- or narcotic whether other contraband “links” of the so-called This “is whole” (11) whether the present, was aphernalia at 406. rule. Id. right possess or had the accused owned Appeals The Texas Court of Criminal found, the narcotics were place where purpose that the of the links explained has (12) place in which the narcot- whether “protect bystander the innocent rule is to (13) enclosed, was whether ics were found for- solely upon based from conviction large with a amount the accused was found proximity [nar- tuitous to someone else’s (14) cash, and whether the conduct of of “simply rule re- Id. The links cotics].” indicated a consciousness of the accused notion that states the common-sense Evans, 202 at 162 n. 12. guilt. father, son, spouse, person-such as a Roberson, applied In we these factors roommate, friend-may jointly possess or who was the driver of against a defendant necessarily like a house but not property passengers and sever- containing a car two jointly possess the contraband found cocaine, we held that the grams al of added). Thus, (emphasis house.” Id. support insufficient to legally evidence was not in exclusive the accused is “[w]hen of possession conviction for the defendant’s place of the where the sub- possession at 742. noted cocaine. 80 S.W.3d We found, it be concluded stance is cannot that, was the summary, “[i]n [Roberson] knowledge of and the accused containing passengers; car two driver of a unless there control over the contraband were later discovered grams of cocaine independent facts and cir- are additional car; drugs were found near the affirmatively link the cumstances which cousin, Lee, had where [Roberson’s] near Id. accused to the contraband.” seated; and the could previously been “many have identified non- Texas courts displayed a found that [Roberson] have may demonstrate factors” that exhaustive ar- guilt after his general consciousness Roberson, 80 S.W.3d a link to contraband. himself from when he disassociated rest “a short- These factors constitute at 741. We passenger].” Id. second [the must be way expressing what hand that, that the although the facts explained were proven [narcotics] to establish of a car later “was the driver defendant knowingly.” Id. The number possessed relation- to contain cocaine” and his found impor- linking present factors is not as disassociation attempted to Lee and ship they create to “logical force” tant as “suspi- passenger the second from committed. prove that an offense was only cious,” “[p]roof amounting such (1) pres- the accused’s These links include probability mere will strong suspicion or (2) conducted, is emphasized, ence when search at 742. not suffice.” Id. We view, in plain the narcotics were whether to link nothing [Roberson] else There (3) to and the ac- proximity the accused’s under the He was not to the cocaine. (4) narcotics, whether cessibility fact, drugs no drugs. influence of narcot- under the influence kind, money accused was drug paraphernalia, (5) arrested, the accused person whether or near the ics when found on his drug narcotics odor contraband or There was no possessed other driver’s seat. (6) cooperative arrested, Appellant the accused car. whether and made no furtive stop ar- throughout statements when incriminating made

Case Details

Case Name: Lair v. State

Court Name: Court of Appeals of Texas

Date Published: Jul 3, 2008

Citation: 265 S.W.3d 580

Docket Number: 01-07-00414-CR

Court Abbreviation: Tex. App.