Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 04-22-2021
Case Style:
Reginald Genell Johnson v. The State of Texas
Case Number: 11-19-00137-CR
Judge: W. BRUCE WILLIAMS
Court: Eleventh Court of Appeals
Plaintiff's Attorney: Britt Lindsey, Assistant
James Hicks, District Attorney
Defendant's Attorney:
Description:
Eastland, Texas - Criminal defense attorney represented Reginald Genell Johnson with a Poss With Intent to Deliver a Controlled Substance charge.
On appeal, Appellant raises two issues and argues that (1) the evidence was
insufficient to convict him of possession of cocaine with intent to deliver and (2) the
trial court erred when it denied his motion to suppress.
Background Facts
Shortly after midnight on the night of the offense, Officer Catherine Mason
(then Catherine Eberhardt) with the Abilene Police Department was on patrol
driving south when she encountered Appellant driving in the opposite direction.
When she looked behind her after he passed her, she could not see his license plate;
she testified at the hearing on Appellant’s motion to suppress that his rear license
plate was “solid black.” It is a traffic violation if the rear license plate of a vehicle
is not illuminated so that it is visible from fifty feet away. Officer Mason testified
at trial that this distance is approximately three car lengths, but she stated that she
could not see Appellant’s license plate from one car length away.
Officer Mason then turned around to initiate a traffic stop and observed
Appellant “roll” a stop sign. Officer Mason activated her lights to indicate to
Appellant that he needed to pull over. Before Appellant pulled over, however,
Officer Mason observed him moving around in the vehicle. Appellant also did not
pull over immediately. As a result, Officer Mason called for backup.
Once she approached the vehicle, Officer Mason asked Appellant for his
driver’s license. He did not have one, but he gave Officer Mason his state-issued
identification. There was a passenger in the vehicle who was identified as Carl
Robert. Officer Jerod Daniel responded to Officer Mason’s call for backup. When
he arrived at the scene, he approached the vehicle from the passenger’s side blind
spot so that Officer Mason could see him, but the vehicle occupants could not. When 3
Officer Mason saw him, she returned to her vehicle. Officer Daniel could see into
the vehicle. He observed Appellant watch Officer Mason walk away. Then
Appellant quickly turned around, began manipulating something under the steering
wheel, and pulled something out. Officer Daniel immediately turned his flashlight
on and saw that Appellant was holding a clear plastic bag.
He immediately told Appellant to stop what he was doing and give him the
bag, which Appellant did. The plastic bag contained several large white rocks of
what the officer presumed to be crack cocaine. The substance was field-tested and
was also subsequently tested at the crime laboratory in Abilene; altogether,
Appellant was found with approximately 2.05 grams of crack cocaine. Once
Appellant was placed in custody at the scene, he told Officer Mason that he did not
sell cocaine but that he was “going to get high, you caught me in the process of going
to get high.” The officers searched Appellant and found that his wallet contained
$600 in cash. In Appellant’s vehicle, the officer’s found three cell phones, but no
instruments to consume the crack cocaine.
At trial, Appellant testified that he had sold his vehicle for $3,600 and that the
buyer had paid him only half. On the night of Appellant’s arrest, the mother of his
children, Jaquayla Jones, called him to tell him that she had found the vehicle. Jones
then picked up Appellant along with Robert, a family friend, to go get the vehicle.
Appellant testified that Jones dropped them off and that Appellant used his spare key
to get into the vehicle and drive off. He stated that he had planned to drop off Robert
and take the vehicle home but that he was pulled over in the process.
Appellant also testified that his rear license plate light was not out. He said
he knew this because the message center would read “lamp out” if any bulb was not
working. According to Appellant, when Officer Mason told him his light was out,
the message center did not read “lamp out.” Appellant also denied knowledge of the
cocaine. He testified that he was looking for his insurance papers in a compartment 4
by the radio when observed by Officer Daniel. Appellant said that, when he removed
the papers, the plastic bag just happened to be in the compartment.
Appellant also testified that he had $600 in his wallet because over the
previous few days he had worked on some cars and had gotten paid. That story was
not corroborated at trial. Appellant admitted that one of the cell phones belonged to
him, but he contended that he did not know anything about the other two. Further,
Appellant stated that he had told Officer Mason that he smoked crack cocaine merely
because he was speaking out of frustration at the situation.
The State presented the testimony of Agent Marc Valentine, an experienced
officer in the narcotics division of the Abilene Police Department. He testified that
the typical amount of crack cocaine for personal use is around .2 grams. He stated
that the amount found in this case was not an amount typical for personal use and
that the possession of an amount over one gram would generally indicate that the
person was involved in distribution. Agent Valentine further testified that drug
dealers often handle large amounts of cash and that the amount of crack cocaine
found in this case would sell for $150 to $200.
Agent Valentine also mentioned various indicators that he uses to determine
if someone is in possession of a controlled substance for the purpose of selling it.
The indicators present in this case were the following: the absence of any device to
smoke the crack cocaine, the pieces already being broken up for distribution, and the
amount being more than the typical amount for a user. On cross-examination,
Agent Valentine stated that he was testifying in general terms and that he had not
been personally involved in the initial investigation of this case. 5
Discussion
1. The evidence is sufficient to support Appellant’s conviction of
possession with intent to deliver.
Standard of Review
We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
of the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). When we conduct a sufficiency review, we consider all of
the evidence admitted at trial, including pieces of evidence that may have been
improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.
2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to
the factfinder’s role as the sole judge of the witnesses’ credibility and the weight
their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts
for the factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443
U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
verdict, and we defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235
S.W.3d at 778. Intent may also be inferred from circumstantial evidence, such as
acts, words, and the conduct of an appellant. Guevara v. State, 152 S.W.3d 45, 50
(Tex. Crim. App. 2004). 6
Analysis
In his first issue, Appellant claims that the evidence was insufficient to support
his conviction for possession of a controlled substance with intent to deliver.
(ApantBr19) A person commits an offense if the person “knowingly manufactures,
delivers, or possesses with intent to deliver” a controlled substance. TEX. HEALTH &
SAFETY CODE ANN. § 481.112(a) (West 2017). As Appellant does not dispute that
he was in possession of the crack cocaine, we need only determine if the evidence
was sufficient to prove he had the intent to deliver. “Deliver” means to “transfer,
actually or constructively, to another a controlled substance.” Id. § 481.002(8) (West
Supp. 2020). The intent to deliver may be established by circumstantial evidence.
Jones v. State, 300 S.W.3d 93, 97 (Tex. App.—Texarkana 2009, no pet.). In
determining whether an individual possessed the intent to deliver, courts have
considered the following:
(1) the nature of the location at which the defendant was arrested;
(2) the quantity of controlled substance in the defendant’s possession;
(3) the manner of packaging; (4) the presence (or lack) of drug
paraphernalia (for either drug use or sale); (5) the defendant’s
possession of large amounts of cash; and (6) the defendant’s status as a
drug user.
Williams v. State, 902 S.W.2d 505, 507 (Tex. App.—Houston [1st Dist.] 1994, pet.
ref’d). “The number of factors present is not as important as the logical force the
factors have in establishing the elements of the offense.” Jones, 300 S.W.3d at 97.
In addition, “[i]ntent can be inferred from the acts, words, and conduct of the
accused.” Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995); Hughitt v.
State, 539 S.W.3d 531, 542 (Tex. App.—Eastland 2018), aff’d, 583 S.W.3d 623
(Tex. Crim. App. 2019). Moreover, expert testimony from an experienced law
enforcement officer may be used to help establish intent to deliver. Jones, 300
S.W.3d at 97. 7
Multiple factors weigh in favor of upholding Appellant’s conviction. Here,
the officers found several rocks of crack cocaine in a clear bag hidden in Appellant’s
vehicle—an amount that an experienced narcotics officer testified would not
typically be for personal use. In addition, Appellant had $600 in cash in his wallet,
and the officers did not find any instrument on Appellant or in his vehicle to consume
the cocaine. Also, Officer Mason testified that there were known drug dealers in the
area where Appellant was stopped. Three cell phones and several rocks of crack
cocaine in sizes for individual sale were also facts that the jury might have
considered. From this, we hold that there was sufficient evidence for the jury to
have found beyond a reasonable doubt that Appellant possessed the intent to deliver
the crack cocaine, and we overrule Appellant’s first issue.
2. The trial court did not abuse its discretion when it denied Appellant’s
motion to suppress.
Standard of Review
“We review a trial court’s denial of a motion to suppress for an abuse of
discretion and apply a bifurcated standard of review, affording almost complete
deference to the trial court’s determination of historical facts, especially when those
determinations are based on assessments of credibility and demeanor.” Furr v. State,
499 S.W.3d 872, 877 (Tex. Crim. App. 2016). “[W]e review a judge’s application
of the law to the facts de novo. We will sustain the judge’s ruling if the record
reasonably supports that ruling and is correct on any theory of law applicable to the
case.” Cole v. State, 490 S.W.3d 918, 922 (Tex. Crim. App. 2016) (footnote
omitted). Further, when the trial court makes no formal findings of fact, “we view
the evidence brought forward at the suppression hearing in the light most favorable
to the trial court’s ruling and assume that the trial court made implicit findings of
fact supported by the record.” Parson v. State, 392 S.W.3d 809, 815 (Tex. App.—
Eastland 2012, pet. ref’d).8
Analysis
In his second issue, Appellant argues that the trial court erred when it denied
his motion to suppress because Officer Mason did not have reasonable suspicion to
believe that he had committed a traffic offense. At the hearing on his motion to
suppress, Appellant testified that his rear license plate light was not out. He stated
that, in addition to the fact that his dashboard did not read “lamp out,” he could see
for himself that the light was not out when he was sitting in the back of the police
car. The mother of Appellant’s children, Jones, also testified that, when she arrived
at the scene after someone told her that Appellant was being arrested, she saw that
the light was not out. Officer Mason also testified that her dashcam video showed
that the rear license plate light did function; however, she insisted that it was not
functioning properly and did not illuminate the license plate such that it could be
seen from fifty feet away.
The temporary detention of individuals by the police to address traffic
violations constitutes a seizure within the meaning of the Fourth Amendment and
must be reasonable. Whren v. United States, 517 U.S. 806, 809–10 (1996); Kothe v.
State, 152 S.W.3d 54, 62–63 (Tex. Crim. App. 2004). The officers must have at
least reasonable suspicion to believe that a traffic violation has occurred. See
Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018). An officer has
reasonable suspicion to detain if the officer has “specific, articulable facts that,
combined with rational inferences from those facts, would lead him to reasonably
conclude that the person detained is, has been, or soon will be engaged in criminal
activity.” Parson, 392 S.W.3d at 815. However, an actual traffic violation
constitutes probable cause that sufficiently justifies the initial detention. Walter v.
State, 28 S.W.3d 538, 543 (Tex. Crim. App. 2000).
The Texas Transportation Code requires the operator of a motor vehicle to
have a taillamp or separate lamp that illuminates the rear license plate to make it 9
“clearly legible at a distance of 50 feet from the rear.” TEX. TRANSP. CODE ANN.
§ 547.322(f) (West 2011). At the hearing on Appellant’s motion to suppress,
Officer Mason testified that, although the rear license plate light appeared to be
working in the dashcam video, the plate was “solid black” when Appellant’s vehicle
passed her on the street. In addition, Officer Mason did not stop Appellant solely
because of his rear license plate light; she also watched him neglect to come to a
complete stop at an intersection, which is also a traffic violation. TRANSP.
§ 545.151(a)(1).
This court has carefully reviewed the record. None of the video taken of the
pursuit, stop, or arrest—including that from the dashcam and the personal cams of
both Officer Mason and Officer Daniel, corroborates the testimony about a lack of
illumination of the license plate. However, all of the relevant video was taken with
Officer Mason’s patrol car lights behind Appellant’s vehicle; the patrol car lights,
themselves, illuminated Appellant’s license plate. To see a lack of illumination,
Officer Mason would have had to have observed Appellant’s rear license plate when
she passed Appellant’s vehicle and looked backward, either by personally turning
her head or while looking in her rearview mirror. The police videos also fail to
corroborate the claim of a failure to come to a complete stop. The patrol car dashcam
video showed Officer Mason’s patrol car passing Appellant’s vehicle and then
having to wait for another vehicle to pass her before she could turn around—having
traveled at least half a block after passing Appellant’s vehicle. Once the patrol car
turned around, looking at the backlights of Appellant’s vehicle with the factors of
distance, night darkness, and lack of optimum quality of the dashcam video, it is
difficult to conclude from that video that Appellant had not made a complete stop at
the only controlled intersection between Officer Mason and Appellant. The State
argues that, as long as Officer Mason had a reasonable suspicion of these traffic
violations, the legality of the stop does not depend on the State proving that 10
Appellant actually committed a traffic offense. The issue is whether an objectively
reasonable officer would have believed that the traffic offense had occurred,
considering the totality of the circumstances. The State relies upon Whren v. United
States, 517 U.S. 806 (1996); State v. Clark, 315 S.W.3d 561 (Tex. App.—Eastland
2010, no pet.); Martinez v. State, 500 S.W.3d 456, 465 (Tex. App.—Beaumont 2016,
pet. ref’d); Fernandez v. State, 306 S.W.3d 354, 357 (Tex. App.—Fort Worth 2010,
no pet.); Green v. State, 93 S.W.3d 541, 545 (Tex. App.—Texarkana 2002, pet.
ref’d); and Guerra v. State, 432 S.W.3d 905, 911 (Tex. Crim. App. 2014). The
Fourth Amendment’s constitutional mandate against unreasonable searches and
seizures must be protected, at the heart of which is the procedure for a motion to
suppress evidence. While the luxury of car and personal video cams is relatively
new, the issue is an old one, and hearings on motions to suppress are a protection in
place to ensure that the right to stop a citizen for a traffic violation, which might then
lead to a search based on probable cause as occurred in this case, is not abused.
Fortunately, as standard procedure upon a motion to suppress, these matters were
placed before a trial court to weigh the evidence, to hear the testimony, to judge the
demeanor of the witnesses, and to resolve conflicts in the testimony in determining
whether Officer Mason had a reasonable suspicion for the stop that was made, with
or without video.
As the finder of fact, the trial court was free to believe Officer Mason’s
testimony, and we do not find that it was unreasonable to do so. Viewed in the light
most favorable to the trial court’s ruling, Officer Mason had a reasonable suspicion
for the initial stop of Appellant. Thus, the trial court did not abuse its discretion
when it denied Appellant’s motion to suppress, and we overrule Appellant’s second
issue.
Finally, an appellate court has the power to modify the trial court’s judgment
to make the judgment speak the truth when it has the necessary information before 11
it to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex.
Crim. App. 1993). The judgment of the trial court erroneously reflects “N/A” with
respect to the enhancement pleas and findings. The record reflects that, while there
were originally two enhancements paragraphs for prior felony convictions for which
the State gave notice, the State waived the second enhancement paragraph at trial.
Appellant pleaded “true” to the first enhancement allegation based on his prior
federal felony conviction for Felon in Possession of a Firearm and Aiding and
Abetting, and the jury found the enhancement allegation to be true. Therefore, we
modify the judgment of the trial court to reflect that Appellant pleaded “TRUE” to
the first enhancement paragraph and that the jury found the enhancement paragraph
to be “TRUE".
Outcome: As modified, we affirm the judgment of the trial court.
Plaintiff's Experts:
Defendant's Experts:
Comments: