Roberts v. State

Full title: RENITA ROBERTS, Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Apr 4, 2005

Nos. 05-04-00329-CR, 05-04-00330-CR (Tex. App. Apr. 4, 2005)

Opinion

Nos. 05-04-00329-CR, 05-04-00330-CR

Opinion Issued April 4, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the Criminal District Court, No. 3, Dallas County, Texas, Trial Court Cause No. F01-22937-LJ, F01-56964-LJ.

Affirmed.

Before Justices BRIDGES, O'NEILL, and MAZZANT.

MEMORANDUM OPINION

Opinion By Justice MAZZANT.

Renita Roberts appeals two convictions for possession of marijuana in an amount five pounds or less but more than four ounces. Appellant waived a jury trial and pleaded not guilty to the court. The trial court found appellant guilty and assessed punishment, enhanced, at eight years' confinement and a fine of $1,000 for each offense. On appeal, appellant raises four issues, arguing the evidence is legally and factually insufficient and she was denied her right of allocution. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.4. We affirm the trial court's judgments.

Sufficiency of the Evidence

Appellant was convicted of two offenses of possessing marijuana in an amount less than five pounds but more than four ounces. Appeal number 05-04-00329-CR involves a conviction for an August 23, 2001 possession. Appeal number 05-04-00330-CR involves possession on September 18, 2001. Appellant argues the evidence is both legally and factually insufficient to sustain the conviction for the August possession and factually insufficient to sustain the conviction for the September possession. When we review evidence to determine if it was legally sufficient to support a verdict, we view all of the evidence in the light most favorable to the verdict, asking 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, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). The factual sufficiency standard for guilt requires us to ask, viewing all the evidence in a neutral light, whether the evidence of the appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Under either review, the fact finder is the sole judge of the weight and credibility of witness testimony. Jones v. State, 944 S.W.2d 642, 647, 648 (Tex.Crim.App. 1996).

State's Evidence

On August 23, 2001, Dallas County Sheriff's Deputy Hector Torres initiated a traffic stop of a pick-up truck. Appellant was a passenger in the truck. After determining the driver had an existing warrant, Torres, with a back-up officer, Rocky Seigler, arrested the driver. Torres asked appellant and the other passenger for identifying information to determine if they had valid driver's licenses so he could release the truck to one of the passengers. Torres looked up the passengers' names, and he learned a warrant existed for both passengers. Torres took both appellant and the other passenger into custody. Seigler initiated an inventory search of the truck and found a bag containing marijuana behind the passenger side of the bench seat. Appellant said it was her bag, and Torres read appellant her Miranda warnings. After doing so, Torres asked appellant if it was her bag, and she said yes. On the night of September 18, 2001, Dallas Police Officers Jacob White and Stephen Baugh, both in uniform, were at any area known for high drug activity-near Silkwood Street. They parked their patrol car around the corner then began walking down Silkwood. They observed a Ford Explorer parked on the side of the street. As they approached the vehicle, appellant got out and placed her hand between her legs. When she removed her hand, a blue baggie fell to the ground. The officers recognized the baggie as containing marijuana and placed appellant under arrest.¹ Baugh looked into the Explorer and saw a large Zip-loc bag sticking out between the console and the passenger seat; that bag contained twenty-five small baggies containing marijuana similar to the one appellant dropped. In a search conducted incident to appellant's arrest, Baugh found another white sack in the back seat. That sack contained an additional forty baggies of marijuana. Both officers stated appellant was alone in the vehicle.

Appellant's Testimony

Appellant testified, and she stated the Hutchins² police had stopped Willie Threadgill on August 23, 2001. Threadgill was driving, and appellant and her then-sister-in-law were passengers in the truck. The officer asked the other passenger to exit the vehicle. According to appellant, neither Officer Seigler nor Officer Torres spoke with the passengers that day. She did not remember seeing either of them at the scene. She was arrested "because [she] had tickets," and no one told her she was arrested for possession that day. She denied having confessed to possessing any drugs, but she did tell the State she knew marijuana was in the truck that day. Regarding the September 18 arrest, appellant testified that Threadgill had dropped her off at work that morning, keeping her Explorer with him during the day. A friend picked up appellant from work and took her to another friend's house located on Silkwood. Threadgill later came to pick up appellant, and he parked her Explorer on the street. Threadgill went to the friend's residence and told appellant he was outside. Appellant got into the Explorer, and Threadgill went to a club down the street to talk to someone else. Appellant saw Threadgill speaking with Officer Baugh, and Officer White approached appellant. Appellant said Baugh and Threadgill were "having some type of confrontation." White asked appellant to step out of the Explorer and wait near a tree. When she did, he began searching the interior of the Explorer, finding drugs. Appellant recalled hearing Baugh yell at Threadgill about whether he was going to allow appellant to "go to jail for his drugs." Appellant denied that the drugs belonged to her; she said that Threadgill was a "drug dealer."

Discussion

In her first and second issues, appellant argues the evidence is both legally and factually insufficient to support the conviction for the August 23, 2001 offense because the State failed to adduce sufficient factors to affirmatively link appellant to the marijuana. However, the two officers testified that they were at the scene and appellant admitted the marijuana was hers.³ Accordingly, the issue was one of credibility-whether the court believed the testimony of appellant or that of the two witnesses stating that appellant admitted the marijuana was hers. The trial court, as the fact finder, was the sole judge of the weight and credibility of witnesses' testimony, and we will not invade its province. See Jones, 944 S.W.2d at 647, 648. We conclude the evidence was both legally and factually sufficient to support the conviction for the August 23, 2001 offense. See also Deleon v. State, 500 S.W.2d 862, 868 (Tex.Crim.App. 1973). We resolve appellant's first and second issues against her. In her third issue, appellant argues the evidence was factually insufficient to support the conviction for the September 18, 2001 offense because the officers' account "is simply not worthy of credence." Again, the trial court, as the fact finder, was the sole judge of the weight and credibility of witnesses' testimony. See Jones, 944 S.W.2d at 647, 648. We will not invade its province. We conclude the evidence was factually sufficient to support the conviction for the September 18, 2001 offense. We resolve appellant's third issue against her.

Right of Allocution

In her fourth issue, appellant argues the trial court erred by failing to follow article 42.07 of the code of criminal procedure. Article 42.07 states, in part, "Before pronouncing sentence, the defendant shall be asked whether he has anything to say why the sentence should not be pronounced against him. . . ." Appellant argues that by not inquiring if she had any reason sentence should not be pronounced, the trial court reversibly erred. Appellant failed to preserve this issue. When a defendant fails to object to a trial court's failure to ask if she had any reason sentence should not be imposed, that defendant fails to preserve error. Nicholson v. State, 738 S.W.2d 59, 63 (Tex.App.-Houston [1st Dist.] 1987, no pet.). The record shows appellant did not object when the trial court pronounced sentence. Further, appellant offers no basis in her brief supporting any argument sentence should not have been pronounced. See id. We resolve appellant's fourth issue against her.

We affirm the trial court's judgments.

1 Appellant stipulated to the lab test results regarding the marijuana found on both dates. Those results confirmed the substance in each arrest was marijuana and weighed more than four ounces but less than five pounds.

2 Appellant consistently stated it was the "Hutchison" police department until the prosecutor asked appellant to clarify, informing appellant she knew of no such place in Dallas County. When asked if she was referring to "Hutchins," appellant replied, "Hutchins, Hutchison, yeah." Appellant then again used "Hutchison" to describe the police she stated arrested her in August. A State's exhibit indicates the area of the stop was near Hutchins, Texas in Dallas County. Appellant uses the term "Hutchins" in her brief, and we likewise use "Hutchins" in discussing appellant's testimony.

3 Appellant states in her brief the confession "appears to have been obtained in violation of the Miranda protection" but includes no argument supporting her statement. She likewise did not raise this point as a separate issue. Without argument supporting it, we do not read this one sentence as raising an issue on appeal. See Tex.R.App.P. 38.1(h).