No. 05-09-00490-CR
Opinion Filed July 22, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F07-51950-J.
Before Justices MORRIS, MOSELEY, and LANG.
Opinion By Justice LANG.
Damion Delorce Perry appeals the trial court's judgment convicting him of unlawful possession with intent to deliver cocaine in an amount of four grams or more, but less than 200 grams. The jury found Perry guilty and that he used or exhibited a deadly weapon during the offense, and assessed his punishment at fourteen years of imprisonment. Perry raises seven issues arguing four points: (1) the trial court erred when it overruled his Batson objections to prospective juror nos. 23 and 51; (2) the evidence is legally and factually insufficient to support his conviction; (3) the evidence is legally and factually insufficient to support the deadly weapon finding; and (4) the trial court erred when it admitted into evidence the drug analysis report through a witness who did not prepare the report, which he claims violated his constitutional right to confrontation. We conclude the trial court did not err when it overruled Perry's Batson objections. Also, the evidence is legally and factually sufficient to support Perry's conviction and the deadly weapon finding. Finally, Perry failed to preserve for appellate review the issue of whether his constitutional right to confrontation was violated when the trial court admitted into evidence the drug analysis report through a witness who did not prepare that report. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Detective Jeff Garrett received information from a confidential informant that drugs were being sold from 1531 Overton Road, Dallas, Texas. He set up a "controlled buy" by sending a confidential informant with a marked $100 bill. The confidential informant purchased cocaine from the house. As a result, Detective Garrett obtained a search warrant. Prior to the execution of the search warrant, Sergeant Ford conducted surveillance of the house. During his surveillance, he observed people walk up to the front door. Then, he observed someone from inside the house answer the door and pass something to them through a hole in the screen. The police executed the search warrant and entered the house using a crow bar and a battering ram. When the police entered the house, the people inside grabbed something from a table near the kitchen and ran toward the bathroom and bedroom at the back of the house. Three individuals were found in the house, Perry, Derick Daughtry, and Jose Gonzales. Perry was arrested in the bedroom. The front door and windows of the house were fortified with mesh and burglar bars. On the table near the kitchen, the police found two digital scales, loose crack cocaine scattered on the table, money, baggies or packaging, and two plates with drug residue. On one of the plates, the police found a razor blade. In the kitchen, the police found baggies and a large bag containing marijuana and money. In a kitchen cabinet, they found loose rounds of ammunition for an assault rifle. There was loose cocaine on the floor near the table. The police also found promethazine. In the living room, the police found a loaded 9-millimeter hand gun on the love seat in plain sight, a loaded hand gun beneath the sofa, small bits of cocaine in the carpet, and cell phones. In the bathroom, there were several large chunks of cocaine in the bathtub. In the bedroom, there was a mattress on the floor and the closet was empty, except for a parka. Detectives Garrett and Jeffrey Francis believed the apartment was a "trap house," which is a street term for a place where no one resides that is used solely for the purpose of selling drugs. The police found $65 on Perry, $161 on Daughtry, and $1,450 on Gonzales. Also, Gonzales had the marked $100 bill that was used by the confidential informant in the "controlled buy." The substance seized from the house was field-tested and the results were positive for cocaine. II. PEREMPTORY CHALLENGES TO THE JURY PANEL
In issues one and two, Perry argues the trial court erred when it overruled his Batson objections to prospective juror nos. 23 and 51. He claims the State's explanations for its strikes against these jurors were pretexts for discrimination because they are not supported by the record. The State responds that Perry did not rebut the State's race-neutral explanation or show that the explanation was merely a sham or pretext. A. Standard of Review
When reviewing a Batson challenge, an appellate court examines the record in the light most favorable to the trial court's ruling and reverses only when the ruling is clearly erroneous. Williams v. State, 301 S.W.3d 675, 688 (Tex. Crim. App. 2009); Young v. State, 283 S.W.3d 854, 866 (Tex. Crim. App. 2009); Herron v. State, 86 S.W.3d 621, 630 (Tex. Crim. App. 2002); Pondexter v. State, 942 S.W.2d 577, 581 (Tex. Crim. App. 1996). A ruling is clearly erroneous when, after searching the record, an appellate court is left with the definite and firm conviction that the trial court has made a mistake. Bausley v. State, 997 S.W.2d 313, 315 (Tex. App.-Dallas 1999, pet. ref'd). When reviewing the record for clear error, the appellate court should examine the entire voir dire record. Watkins v. State, 245 S.W.3d 444, 448 (Tex. Crim. App. 2008). The appellate court need not limit itself to arguments or considerations that the parties specifically called to the trial court's attention so long as those arguments or considerations are manifestly grounded in the appellate record. Id. B. Applicable Law
To challenge the State's use of peremptory strikes under Batson, a defendant must first make a prima facie showing that the State exercised peremptory strikes on an impermissible basis. See Williams, 301 S.W.3d at 688; Herron, 86 S.W.3d at 630. Once a defendant makes a prima facie showing of purposeful discrimination, the State must provide a race-or gender-neutral explanation for striking the prospective juror in question. See Williams, 301 S.W.3d at 688; Miller-El v. Dretke, 545 U.S. 231, 239 (2005); Herron, 86 S.W.3d at 630; Pondexter, 942 S.W.2d at 581. This step requires an explanation devoid of inherent discriminatory intent. Bausley, 997 S.W.2d at 315 (citing Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam)). An explanation is neutral in this context if the State bases it on something other than the prospective juror's race or gender. See Hernandez v. New York, 500 U.S. 352, 360 (1991). Unless discriminatory intent is inherent, the courts will consider the explanation race or gender neutral. See id. at 360. If the State provides a race-or gender-neutral explanation for its strikes, the burden of production shifts back to the defendant to show that the explanations are really a pretext for discrimination. See Williams, 301 S.W.3d at 688; Herron, 86 S.W.3d at 630; Pondexter, 942 S.W.2d at 581. To meet this burden, the defendant may call witnesses and introduce evidence just as in any other evidentiary hearing. Bausley, 997 S.W.2d at 316. The defendant has the ultimate burden of persuasion to establish the truth of his allegations of purposeful discrimination. Id. Then, the trial court must determine whether the defendant has carried his burden of proving discrimination. Williams, 301 S.W.3d at 688. C. Application of the Law to the Facts
Following voir dire, Perry's counsel objected, arguing the State's use of peremptory strikes was racially motivated for two of the black venire members, i.e., prospective juror nos. 23 and 51. The State responded with the following reasons, which it claimed to be race-neutral, for striking the prospective jurors: (1) prospective juror no. 23 listed his occupation as "engineer" and prospective juror nos. 39 and 54 were also stricken for that reason; and (2) prospective juror no. 51 rated the police in his community as "fair" and prospective juror no. 39 was also stricken for that reason. Also, as we understand the State's position, the State asserted that because prospective juror nos. 39 and 54 were white and the reasons for striking them were the same as those for striking the black members of the panel, no racial motivation could be shown. Once the State offered what it claimed to be race-neutral explanations for its strikes, the burden of production shifted to Perry to show that the State's explanations were a sham or pretext. See Williams, 301 S.W.3d at 688. The record shows no attempt by Perry to demonstrate that the articulated reasons were actually a pretext for discrimination. See id. at 689. Accordingly, we conclude the trial court's ruling with regard to prospective juror nos. 23 and 51 is not clearly erroneous. See id. at 689. Issues one and two are decided against Perry. III. LEGAL AND FACTUAL SUFFICIENCY
In issues three through six, Perry argues the evidence is legally and factually insufficient to support his conviction for possession with intent to deliver cocaine and the deadly weapon finding. A. Standards of Review
Differences exist between a legal sufficiency and factual sufficiency review of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). However, a factual sufficiency review is barely distinguishable from a legal sufficiency review. Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). The primary difference between the two standards is that a legal sufficiency review requires an appellate court to defer to the jury's credibility and weight determinations while a factual sufficiency review permits the appellate court to substitute its judgment for the jury on these questions, albeit to a very limited degree. See Rollerson, 227 S.W.3d at 724; Marshall, 210 S.W.3d at 625. 1. Legal Sufficiency
The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Rollerson, 227 S.W.3d at 724; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. See Marshall, 210 S.W.3d at 625; King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). All evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Marshall, 210 S.W.3d at 625; Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004); Johnson v. State, 967 S.W.2d 410, 411 (Tex. Crim. App. 1998). 2. Factual Sufficiency
In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). When conducting a factual sufficiency review, an appellate court considers all of the evidence, both direct and circumstantial, whether properly or improperly admitted. See Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007); Marshall, 210 S.W.3d at 625. Reversal for factual insufficiency occurs only when: (1) the evidence supporting the verdict is so weak the verdict seems clearly wrong and manifestly unjust; or (2) there is some objective basis in the record that shows the great weight and preponderance of the evidence contradict the jury's verdict. See Berry, 233 S.W.3d at 854; Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417. B. Legal and Factual Sufficiency of the Evidence to Support the Judgment of Conviction
In issues three and four, Perry argues the evidence is legally and factually insufficient to support his conviction. He claims the evidence fails to show that he exercised actual care, custody, control, or management over the cocaine to establish that he knowingly possessed it. The State responds that there is sufficient evidence to link Perry to the cocaine. 1. Applicable Law
The Texas Controlled Substances Act provides that a person commits an offense if the person knowingly possesses cocaine with the intent to deliver. See Tex. Health Safety Code Ann. §§ 481.102(3)(D), 481.112(a), (d) (Vernon Supp. 2009). The term "possession" means actual care, custody, control, or management. Id. § 481.002(38) (Vernon Supp. 2009). The State must prove the defendant: (1) exercised actual care, custody, control, or management over the substance; and (2) knew the substance possessed was contraband. See Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). Whether direct or circumstantial, the evidence must establish that the defendant's connection with the controlled substance was more than just fortuitous. See Evans, 202 S.W.3d at 161; Poindexter, 153 S.W.3d at 405. Mere presence at the location where the controlled substance was found is insufficient, by itself, to establish possession. See Evans, 202 S.W.3d at 162. Control over a controlled substance need not be exclusive, but can be jointly exercised by more than one person. See McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985); Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.-Dallas 2003, no pet.). If the defendant was not in exclusive possession of the controlled substance, the State is required to present evidence linking him to it. See Taylor, 106 S.W.3d at 830-31. When determining whether sufficient evidence exists to link a defendant to the contraband, an appellate court considers a variety of factors, including: (1) the defendant's presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant's proximity to and the accessibility of the controlled substance; (4) whether the defendant was under the influence of a controlled substance when arrested; (5) whether the defendant possessed other contraband or controlled substances when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the controlled substance was found; (12) whether the place where the controlled substance was found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt. See Evans, 202 S.W.3d at 162 n. 12. However, these are just factors which may circumstantially establish the sufficiency of the evidence to prove a knowing "possession." See id. These factors are not a litmus test. See id. The number of links is less important than the "logical force" or degree to which the links, alone or in combination, tend to link the defendant to the controlled substance. See id. at 162; Taylor, 106 S.W.3d at 830. 2. Application of the Law to the Facts
Perry concedes that there is evidence of the following links: (1) he was present when the search was conducted; (2) there was contraband in plain view; and (3) he ran from the room when the police slammed through the door. He claims these factors are the only evidence linking him to the cocaine. Perry argues the police had no intelligence information about him in contrast to the information the police received regarding the other two individuals in the house, they did not observe him coming or going from the "trap" before the date the search warrant was executed, they found no identification documents in the "trap" with his name on them, they did not recover his fingerprints from any of the items in the "trap," and he had no weapons, cocaine, or marijuana on his person. However, the record also contains evidence showing the following links: (1) the police received information from a confidential information that drugs were being sold from the house; (2) the door and windows to the house were fortified with mesh and burglar bars; (3) the house was a "trap" used for the purpose of selling drugs and no one lived in the house; (4) loose cocaine was found scattered on the table, on the floor near the table, and in the living room carpet; (5) large chunks of cocaine were found in the bathtub; (6) money was found on the table near the kitchen and in a large bag containing marijuana; (7) two digital scales, two plates with drug reside, and a razor blade were found on the table; (8) baggies or packaging were found on the table and in the kitchen cabinets; (9) in the living room, the police found a loaded 9-millimeter hand gun on the love seat in plain sight and a loaded hand gun beneath the sofa, and in the kitchen cabinets, loose rounds of ammunition for an assault rifle; (10) the police also found marijuana and promethazine in the house; (11) the police found $65 on Perry, $161 on Daughtry, and $1,450 on Gonzales; (12) Gonzales had the marked $100 bill that was used by the confidential informant in the "controlled buy." Viewing the evidence in the light most favorable to the verdict, we conclude there is legally sufficient evidence to link Perry to the cocaine to prove a knowing possession. Perry claims the evidence is factually insufficient to show he knowingly possessed and had actual care, custody, control, or management over the cocaine, because, in his view, the evidence showed only that he was present in the "trap" to purchase marijuana. He points to the following evidence: (1) the testimony of his mother and friend that he went to the "trap" to purchase marijuana for his mother who was undergoing chemotherapy; (2) his mother's testimony that she gave him $15 to purchase the marijuana; and (3) his sister's testimony that she gave him $60 on the day he was arrested. Viewing the evidence in a neutral light, we conclude there is factually sufficient evidence to link Perry to the cocaine from which a jury could rationally conclude beyond a reasonable doubt that Perry knowingly possessed the cocaine. The evidence supporting the verdict is not so weak that the verdict seems clearly wrong and manifestly unjust, nor does the great weight and preponderance of the evidence contradict the jury's verdict. After reviewing all of the evidence under the appropriate standards of review, we conclude the evidence is legally and factually sufficient to support Perry's conviction. Issues three and four are decided against Perry. C. Legal and Factual Sufficiency of the Evidence to Support the Deadly Weapon Finding
In issues five and six, Perry argues the evidence is legally and factually insufficient to support the deadly weapon finding. He argues that the evidence does not show he was present in the "trap" house to participate in the drug trade. The State responds that the evidence shows that a loaded firearm was found in plain view close to the contraband. 1. Applicable Law
Article 42.12, section 3g(a)(2) of the Texas Code of Criminal Procedure permits the entry of a deadly weapon finding when it is shown that a defendant used or exhibited a deadly weapon, or he was a party to the offense and knew that a deadly weapon would be used or exhibited. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2009). In the context of a deadly weapon finding, the term "use" means any employment of a deadly weapon, even simple possession, if that possession facilitates the associated felony. Coleman v. State, 145 S.W.3d 649, 652 (Tex. Crim. App. 2004); Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). However, the term "exhibit" requires a weapon to be consciously shown, displayed or presented to be viewed. Coleman, 145 S.W.3d at 652; Patterson, 769 S.W.2d at 941. When reviewing the sufficiency of the evidence to support a deadly weapon finding, the real question for review is whether the weapon was found to have facilitated the defendant's possession and intended distribution of the drugs. See Coleman, 145 S.W.3d at 655. The defendant's proximity to the gun at the time of the search is not dispositive. Id. at 654. The focus is on the proximity of the gun to the drugs, not the proximity of the gun to the defendant. See id. at 654-55 (discussing Gale v. State, 998 S.W.2d 221, 226 (Tex. Crim. App. 1999)). Also, ownership is not necessary for a finding that a defendant used a deadly weapon in violation of article 42.12, section 3g, of the Texas Code of Criminal Procedure. Smith v. State, 176 S.W.3d 907, 919 (Tex. App.-Dallas 2005, pet. ref'd). Courts must determine whether the cumulative effect of the factors could have allowed a rational jury to determine that the defendant used the weapons to protect the drugs and the proceeds therefrom. Coleman, 145 S.W.3d at 655. 2. Application of the Law to the Facts
Perry concedes that the guns found in the "trap" are deadly weapons, the drugs and guns were in close proximity to each other, and the guns may have been used by the drug suppliers to facilitate their trade. However, he claims that he was not present in the "trap" to sell drugs, but for the purpose of purchasing marijuana for medical purposes for his mother. He argues that "[b]ecause the evidence is insufficient to show [he] committed the offense, it follows that it is legally [and factually] insufficient to support the jury's affirmative answer to the deadly weapon finding." Two loaded hand guns were found in the living room. A 9-millimeter hand gun was found on the love seat and another loaded hand gun was found beneath the sofa. Also, in a kitchen cabinet, the police found loose ammunition for an assault rifle. Cocaine was found on the table near the kitchen, on the floor near that table, in the living room carpet, and in the bathtub. The house was a "trap," i.e., no one resided there, and the door and windows were fortified with mesh and burglar bars. Viewing the evidence in the light most favorable to the verdict, there is legally sufficient evidence to support the affirmative deadly weapon finding. The evidence supporting the affirmative deadly weapon finding is not so weak that the affirmative deadly weapon finding seems clearly wrong and manifestly unjust, nor does the great weight and preponderance of the evidence contradict the jury's affirmative deadly weapon finding. Viewing the evidence in a neutral light, we conclude there is factually sufficient evidence to support the affirmative deadly weapon finding. After reviewing all of the evidence under the appropriate standards of review, we conclude the evidence is legally and factually sufficient to support the affirmative deadly weapon finding. Issues five and six are decided against Perry. III. CONSTITUTIONAL RIGHT TO CONFRONTATION
In issue seven, Perry argues the trial court erred when it admitted into evidence the drug analysis report through a witness who did not prepare the report, which he claims violated his constitutional right to confrontation. He claims that he was deprived of his constitutional right to confront and cross-examine the drug analyst about her analysis and results at trial because the supervising analyst who reviewed the report testified to the results, not the analyst who performed the analysis. The State responds that Perry failed to preserve this issue for appellate review. The Confrontation Clause of the Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI; see also Cuadros-Fernandez v. State, No. 05-06-01464-CR, 2009 WL 2647890, at *8 (Tex. App.-Dallas Aug. 8, 2009, no pet.). Out of court testimonial evidence violates the Confrontation Clause unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine him. Crawford v. Washington, 541 U.S. 36, 68 (2004); see also Cuadros-Fernandez, 2009 WL 2647890 at *8. A forensic analyst is a witness for purposes of the Sixth Amendment. Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2532 (2009); see also Cuadros-Fernandez, 2009 WL 2647890 at *8. Absent a showing that the analyst was unavailable to testify at trial and the defendant had a prior opportunity to cross-examine the analyst, the defendant has a right to confront the analyst at trial. Melendez-Diaz, 129 S.Ct. at 2532; see also Cuadros-Fernandez, 2009 WL 2647890 at *8. To preserve an issue for appellate review, the record must show: (1) a timely and specific request, objection, or motion bringing the issue to the trial court's attention; and (2) the trial court ruled on the party's request, objection, or motion, or the trial court refused to rule and the party objected to that refusal. Tex. R. App. P. 33.1(a). Failure to object in a timely and specific manner will forfeit a complaint about the admissibility of evidence, even if the error concerns a constitutional right of the defendant. Deener v. State, 214 S.W.3d 522, 527 (Tex. App.-Dallas 2006, pet. ref'd). The right of confrontation is a forfeitable right and must be preserved by a timely and specific objection at trial. Id. There is nothing in the United States Supreme Court's opinion in Crawford that would excuse a defendant for failing to make a confrontation claim at trial. Id. (discussing Crawford, 541 U.S. 36). Similarly, the United States Supreme Court noted in Melendez-Diaz that "The right to confrontation may, of course, be waived, including by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections." Melendez-Diaz, 129 S.Ct. at 2534 n. 3. The cocaine was analyzed and the report was prepared by Tasha Smith an analyst for the Southwestern Institute of Forensic Sciences at Dallas (SWIFS). Smith did not testify at trial. Instead, the State introduced the report (exhibit no. 22), through the testimony of Monica Lopes, the supervisor at SWIFS. Lopes testified she was a custodian of records for SWIFS, the report is a record kept in the normal course of business at SWIFS, the entries in the report were prepared by a SWIFS employee that had direct, personal knowledge of the events depicted in the report, and the report was made at or near the time of the event recorded. The State offered exhibit no. 22 into evidence for all purposes, defense counsel stated "No objection," and the trial court admitted the exhibit into evidence. Then, Lopes proceeded to testify as to the findings contained in the analyst's report. Perry did not object to Lopes's testimony. We conclude Perry has failed to preserve for appellate review his claim that the trial court erred when it admitted into evidence the drug analysis report through a witness who did not prepare the report, which he claims violated his constitutional right to confrontation. Perry did not make a timely, specific objection so his right of confrontation was forfeited. See Tex. R. App. P. 33.1(a); Deener, 214 S.W.3d at 528. IV. CONCLUSION
The trial court did not err when it overruled Perry's Batson objection. Also, the evidence is legally and factually sufficient to support Perry's conviction and the deadly weapon finding. Finally, Perry failed to preserve for appellate review the issue of whether his constitutional right to confrontation was violated when the trial court admitted into evidence the drug analysis report through a witness who did not prepare that report. The trial court's judgment is affirmed.