Blanton v. State

Full title: DONALD GENE BLANTON, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 21, 2006

Nos. 05-05-01060-CR, 05-05-01061-CR (Tex. App. Jul. 21, 2006)

Opinion

Nos. 05-05-01060-CR, 05-05-01061-CR

Opinion Filed July 21, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 86th Judicial District Court, Kaufman County, Texas, Trial Court Cause Nos. 23078-86 and 23592-86. Affirm.

Before Justices WHITTINGTON, BRIDGES, and RICHTER.

OPINION

Opinion By Justice RICHTER.

A grand jury indicted Donald Gene Blanton on two charges: (1) possession of cocaine in an amount less than one gram (appellate cause number 05-05-01060-CR) and (2) tampering with evidence (appellate cause number 05-05-01061-CR). The charges arose after Mabank police officer Joshua Jennings signaled Blanton to stop for a traffic violation. During the approximate 250 feet Blanton traveled before stopping, Jennings observed Blanton throw two plastic "baggies" from his car window. The bags were later retrieved and, although ripped with some of the contents spilling onto the street and unrecoverable, they contained a measurable amount of what appeared to be crack cocaine and marijuana.¹ Dissatisfied with his appointed counsel, Blanton moved for new counsel prior to trial. When his request was denied, he moved and was allowed to proceed "pro se with assistance of counsel."² After a jury convicted him of both offenses and assessed an enhanced punishment of twenty years in the possession case and life in the tampering case, Blanton was again appointed counsel. On appeal, Blanton argues that his convictions should be reversed because (a) the evidence is legally and factually insufficient to support the convictions, (b) he did not knowingly, voluntarily, and competently waive his right to assistance of counsel, and (c) the trial judge erred in failing to grant his request for new appointed counsel and his request to submit a jury charge instruction concerning the legality of the stop. Finding against Blanton, we affirm.

1 The record does not reflect whether any charges were filed stemming from the marijuana.

2 Blanton's proceeding "pro se with assistance of counsel" amounted to hybrid representation as both Blanton and counsel participated at trial. See Walker v. State, 962 S.W.2d 124, 126 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). The record reflects counsel filed and argued pre-trial motions; conducted voir dire; participated extensively at guilt-innocence by cross-examining the State's expert, directing the defense's sole witness, moving for an instructed verdict, objecting to the charge, and arguing at closing; and participated in every aspect of punishment. Blanton participated only at guilt-innocence, making opening argument and cross-examining the arresting and back-up officers.

Sufficiency of the Evidence

In his first four issues, Blanton contends the evidence is legally and factually insufficient to support the convictions. We review challenges to the legal and factual sufficiency of the evidence under well-known standards. In reviewing a legal sufficiency challenge, we view the record in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004). In reviewing a factual sufficiency challenge, we view all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We will find the evidence to be factually insufficient when the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt or the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. Based on the indictment in the possession case, to establish Blanton's guilt, the State had to prove beyond a reasonable doubt that Blanton knowingly or intentionally exercised actual care, control, or custody of the cocaine. See Tex. Health Safety Code Ann. §§ 481.102(3)(D), 481.115(a),(b) (Vernon 2003 Supp. 2005); Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005). Based on the indictment in the tampering case, to establish Blanton's guilt, the State had to prove beyond a reasonable doubt that Blanton, (i) knowing that an investigation was pending or knowing that an offense had been committed, (ii) intentionally or knowingly altered, destroyed, or concealed the cocaine and its packaging, (iii) with the intent to impair its availability as evidence in the investigation or in any subsequent investigation related to the offense. See Tex. Pen. Code Ann. § 37.09(a)(1), (d)(1) (Vernon 2003). In arguing the evidence is legally and factually insufficient to support his conviction for possession, Blanton maintains no direct evidence established his possession. In making this argument, Blanton correctly notes that the only evidence from which the jury could have inferred possession was the evidence showing he threw a bag containing cocaine from his window. Contrary to Blanton's contention, however, this evidence was sufficient to prove the offense beyond a reasonable doubt. See Garrett v. State, 161 S.W.3d 664, 671-72 (Tex.App.-Fort Worth 2005, pet. ref'd) (evidence legally and factually sufficient to establish possession of cocaine where officer testified he saw appellant throw baggies containing cocaine into toilet and reach to flush toilet). From Blanton's throwing the bag with cocaine out his window, a rational jury could have found he exercised care, custody and control over the cocaine. See Davis v. State, 862 S.W.2d 817, 818-19 (Tex.App.-Beaumont 1993, no pet.) (officer's testimony that appellant threw bottle containing cocaine down during chase showed actual possession and care, custody, and control). And, from his discarding the bag containing cocaine, the jury could also infer consciousness of guilt and thus knowledge. See id. (officer's testimony that appellant discarded bottle containing cocaine in officer's presence showed consciousness of guilt and knowledge). No evidence exists showing that Blanton was not the owner nor sole occupant of the car or that the bag containing cocaine Jennings retrieved was not the bag Blanton threw out the window. Viewing the evidence under the appropriate standards, we conclude the evidence is legally and factually sufficient to show possession. We also conclude the evidence is legally and factually sufficient to support the conviction for tampering. In arguing to the contrary, Blanton maintains that because he threw out the bag in Jennings's view the State failed to prove he concealed the cocaine and, because sufficient cocaine was recovered to charge him with possession the State failed to prove he destroyed the cocaine. Blanton also argues that the State failed to prove he altered the cocaine because no direct evidence showed he ripped the bag before discarding it and no evidence existed that the amount of cocaine that spilled onto the road and was not recovered would have resulted in his being charged with a greater offense-possession in an amount of one gram or more.³See Tex. Health Safety Code Ann. §§ 481.102(3)(D), 481.115(c). We agree with Blanton that the State failed to establish Blanton concealed or destroyed the cocaine. See Hollingsworth v. State, 15 S.W.3d 586, 594-95 (Tex.App.-Austin 2000, no pet.) (evidence legally insufficient to show appellant concealed cocaine by carrying it in his mouth because evidence showed that is how cocaine is commonly carried, he did not place cocaine in mouth to impair its availability as evidence, and he spit it out when he saw officers, thus exposing it to view); Spector v. State, 746 S.W.2d 945, 945-46 (Tex.App.-Austin 1988, no pet.) (destruction, for purposes of tampering statute, requires a form change accompanied by loss of evidentiary value). However, we do not agree that the evidence is legally and factually insufficient to show Blanton altered the evidence. See Tex. Pen. Code Ann. § 37.09(d)(1). From the evidence showing the bag was ripped with its content spilling onto the roadway, the jury could have rationally inferred Blanton altered the evidence. Although the evidence that Blanton ripped the bag was circumstantial, it is of no import as the State could prove the offense through circumstantial evidence. See Guevara, 152 S.W.3d at 49 (lack of direct evidence is not dispositive of issue of guilt; circumstantial evidence alone is sufficient to establish guilt). Additionally, although no evidence shows the contents that spilled onto the roadway and were not recovered would have resulted in a greater offense, the State was not required to prove that to establish Blanton's guilt. All the State was required to prove was that Blanton altered the evidence with the intent to impair its verity or availability as evidence. See Tex. Pen. Code Ann. § 37.09(d)(1); Lewis v. State, 56 S.W.3d 617, 625 (Tex.App.-Texarkana 2001, no pet.) (tampering statute does not require evidence be made useless to investigation or proceeding but only that appellant have acted with intent to impair its usefulness in investigation or proceeding); see also Spector, 746 S.W.2d at 946 (form changes without a loss of evidentiary value are alterations or attempts to destroy). We resolve Blanton's first four issues against him.

Denial of New Counsel

In his fifth issue, Blanton asserts the trial judge erred in denying his request for new counsel. Blanton did not file a written motion but moved orally for new counsel at a February 10, 2005 pre-trial "status" hearing. The whole of the argument and ruling was as follows

[BLANTON]: I would like to ask the court for withdrawal of counsel due to the fact that the counsel is not representing me correctly. She has been ineffective. Everything I give her is to harm me. Everything I ask her for she denied in the first of my case. She already wrote me letters already convicting me before I even went to trial. I feel that we have a serious conflict of interest and I would like to ask for another attorney.

[JUDGE]: You can have any attorney you want, if you will pay for it; if you don't pay for it, it's my choice. [Counsel's] very capable. And what I find is that if I grant you a new attorney, you're not going to like the new one any better than you like this one and it just doesn't work to grant a new attorney. So, if you want to hire somebody, go and do it; but, otherwise, it's my choice.

[BLANTON]: True.

[JUDGE]: So I'm going to deny that request. Now what else have we got?

At that point, counsel called Blanton to the stand and examined him regarding the State's plea offer. No further argument in support of his request for new counsel was made and at no point did Blanton attempt to offer exhibits or witness testimony in support of his request or complain that he was unable to do so. Now, recognizing that he bore the burden of showing the trial court that he was entitled to new counsel and that his bare assertions were insufficient, see Malcom v. State, 628 S.W.2d 790, 791 (Tex.Crim.App. [Panel Op.] 1982), Blanton argues he was "cut short by the trial court below and unable to develop any proof." The record, however, as reflected above, shows otherwise. Blanton did not attempt to offer any proof and complains of his inability to do so for the first time on appeal. Blanton's complaint is meritless. We resolve Blanton's fifth issue against him. See Carroll v. State, 176 S.W.3d 249, 256 (Tex. App-Houston [1st Dist.] 2004, pet. ref'd) (trial court did not err in refusing to appoint new counsel where appellant complained of counsel approximately one month before trial but failed to establish conflict of interest and did not continue to complain after trial began); Garner v. State, 864 S.W.2d 92, 98-99 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd) (trial court did not err in refusing to appoint new counsel where appellant complained of conflict of interest but record failed to show nature of complaint).

Waiver of Counsel

Blanton's sixth issue stems from his being allowed to proceed "pro se." Before a defendant may be allowed to represent himself, the trial judge must advise the defendant of the dangers and disadvantages of self-representation and make "necessary inquiries of the defendant" to ensure the defendant "knows what he is doing and his choice is made with his eyes open." Walker v. State, 962 S.W.2d 124, 126 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). Blanton maintains that the judge here did not meet his "burden" and thus his "waiver of his right to assistance of counsel" was not "knowingly, competently, intelligently, and voluntarily made." However, the admonishments are required only where defendants represent themselves without the assistance of counsel. See Maddox v. State, 613 S.W.2d 275, 286 (Tex.Crim.App. [Panel Op.] 1980) (op. on reh'g); Walker, 962 S.W.2d at 126. When, as here, a defendant has the assistance of counsel, he has not waived counsel and the trial court is not required to admonish the defendant. Maddox, 613 S.W.2d at 286; Walker, 962 S.W.2d at 126. We resolve Blanton's sixth issue against him.

Jury Charge Error

In his seventh issue, Blanton complains of the trial judge's overruling his request for a jury charge instruction on the legality of the stop. In arguing this point, Blanton correctly notes that Jennings gave differing reasons at trial for stopping Blanton, including two traffic violations and his belief that Blanton's brother, who Jennings knew had an expired driver's license, was driving the car. Blanton maintains that Jennings's testimony created a fact issue as to the legality of the stop and thus also the seizure of the cocaine, which under Texas Code of Criminal Procedure article 38.23, was for the jury to resolve. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). We agree with Jennings that under article 38.23 if a fact issue is raised in a jury trial as to whether evidence was obtained as a result of an illegal stop, the jury shall be instructed to disregard such evidence if it believes or has a reasonable doubt that the evidence was illegally obtained. See id.; Balentine v. State, 71 S.W.3d 763, 773 (Tex.Crim.App. 2002). However, article 38.23 is not implicated where, as here, a defendant discards evidence before submitting to authority. Evidence discarded after a person is commanded to stop by an officer but before stopping is not illegally seized regardless of the basis for the stop. See California v. Hodari, D., 499 U.S. 621 (1991) (cocaine discarded by defendant while running from police after being told to stop but before stopping not illegally obtained); Johnson v. State, 912 S.W.2d 227, 232 (Tex.Crim.App. 1995) (same); Crawford v. State, 932 S.W.2d 672, 673-74 (Tex.App.-Houston [14^th Dist.] 1996, pet. ref'd) (same). Here, although Blanton had been signaled to stop, he had not yet stopped at the time he discarded the bag containing cocaine. And, because he had not yet stopped at the time he discarded the bag, the cocaine was legally seized and an article 38.23 instruction was not required. We resolve Blanton's seventh issue against him. We affirm the trial court's judgments.