Expunction of Deferred Adjudication

Facts:

A defendant pled guilty to a felony offense and received deferred adjudication for a term of ten years. But after six years, the court terminated the defendant's deferred adjudication and released him without any further conditions.

Issue:

Can the defendant's criminal record be expunged of the felony offense for which he received deferred adjudication?

Short Answer:

No. The purpose of article 55.01 of the Code of Criminal Procedure is to expunge the records of individuals who have been wrongfully arrested or charged for an offense, not to expunge the records of those who are arrested, plead guilty to an offense, and receive some form of court-ordered probation.

Discussion:

The Code of Criminal Procedure authorizes the expunction of criminal records of certain individuals. Tex. Code Crim. Proc. Ann. art. 51.01 (Vernon 2006). The requirements to expunge a criminal record are found in article 51.01 of the Code of Criminal Appeals:

a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:

(1) the person is tried for the offense for which the person was arrested and is:

(A) acquitted by the trial court, except as provided by Subsection (c) of this section; or

(B) convicted and subsequently pardoned; or

(2) each of the following conditions exist:

(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:

(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or

(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;

(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and

(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.

And a person who successfully completes deferred adjudication, without more, is not entitled to the expunction of her criminal records because deferred adjudication qualifies as court ordered probation under article 51.01. In the Matter of the Expunction of Ramirez, 143 S.W.3d 856, 858 (Tex. App.---El Paso 2004, no pet.); Tex. Dept. of Public Safety v. Butler, 941 S.W.2d 318, 321 (Tex. App.---Corpus Christi 1997, no pet.); Harris County District Attorney's Office v. D.W.B., 860 S.W.2d 719, 721 (Tex. App.---Houston [1st Dist.] 1993, no pet.); State v. Knight, 813 S.W.2d 210, 212 (Tex. App.---Houston [14th Dist.] 1991, no pet.). In Bulter, Bulter pleaded guilty to a third degree felony, received deferred adjudication, successfully completed the terms of deferred adjudication, and moved to have his record expunged of the felony offense. 941 S.W.2d at 319. The court held that deferred adjudication qualifies as court ordered probation under article 42.12 of the Code of Criminal Procedure, and therefore, Butler could not satisfy the requirements of article 55.01. Id. at 321. Because Butler could not satisfy the requirements of article 55.01, the court refused to expunge his record of the felony offense. Id.

Like Butler, the defendant pleaded guilty to a felony offense, received deferred adjudication, and successfully completed the terms of deferred adjudication. But deferred adjudication qualifies as court ordered probation under article 42.12. Because deferred adjudication qualifies as court ordered probation, the defendant does not satisfy the requirements of article 55.01. Therefore, he is not entitled to have his record expunged of the offense for which he received deferred adjudication.

Proving a Green, Leafy Substance Is Marijuana at Trial

Facts:

Defendant was arrested and charged for possession of marijuana. The State has not done a chemical analysis of the substance found on the defendant to determine whether it was marijuana. Rather, the State intends to rely solely on the testimony of police officers to prove the substance found on the defendant was marijuana.

Issue:

Is the testimony of police officers, absent a chemical analysis, sufficient to prove the substance found on the defendant was marijuana?

Short Answer:

Yes. The testimony of an officer who has been trained to recognize marijuana by its physical characteristics is sufficient to prove the substance found in the possession of the defendant is marijuana.

Discussion:

When it charges a defendant with possession of marijuana, the State must prove the substance found in the defendant’s possession is marijuana. See Tex. Health & Safety Code Ann. § 482.121 (Vernon 2003); Adair v. State, 482 S.W.2d 247, 253-54 (Tex. Crim. App. 1972); Boothe v. State, 474 S.W.2d 219, 220-21 (Tex. Crim. App. 1972). But the State does not need to conduct a chemical analysis of the substance to determine whether it is marijuana. Boothe v. State, 474 S.W.2d at 221. In fact, the testimony of the officer who discovered the substance on the defendant is sufficient to prove the substance is marijuana as long as he has received sufficient training in identifying marijuana by its physical characteristics. Id. In Boothe v. State, a boy led two narcotics officers to a building under construction where they found several bags containing a “weed looking substance.” Id. at 220. One officer had spent three years in the narcotics division, had been trained to recognize marijuana by its physical characteristics, and had encountered marijuana hundreds of times on the average of five times per week. Id. The other officer had been in the narcotics division for only one-and-one-half years but had been trained to recognize marijuana by its physical characteristics. Id. The officers determined the “weed looking substance” was marijuana and set up a stake out to apprehend whoever had left it in the building. Id. Boothe arrived to retrieve the marijuana and was arrested. Id. A chemical analysis was performed on the marijuana, and Boothe attacked the test, arguing the State could not establish the chain of custody to prove the substance he retrieved and the substance the police found were the same. Id. The Court of Criminal Appeals did not address Boothe’s claim and held no chemical analysis was necessary because the testimony of the two officers was sufficient to prove the “weed looking substance” was in fact marijuana. Id. at 221.

In the present case, the State intends to rely solely on the testimony of police officers to prove the substance found on the defendant was marijuana. As long as the officers have the qualifications to identify marijuana by its physical characteristics, like the officers in Boothe, their testimony is sufficient to prove the substance is marijuana. Therefore, no chemical analysis is necessary to prove the substance is marijuana.

4th Amendment Consent

Facts:

The police spot a parked car occupied by two young men and approach it even though they have no justification for suspecting the young men are engaged in criminal activity. The young men notice the police and one of them bends down. The police ask the driver of the car if they can search the car for drugs. The driver consents, and during the search, the police find two rocks of crack-cocaine under the driver’s seat.

Issue:

Did the police’s suspicionless search of the car violate either the young man in the driver seat’s or the young man in the passenger seat’s Fourth Amendment rights against unreasonable searches and seizures?
Short Answer:

No. A reasonable person in these young men’s situation would have felt free to refuse the officer’s request to search the vehicle because the police merely identified themselves and asked to search the vehicle.

Discussion:

Police encounters with individuals fall into two categories: (1) non-seizures or consensual encounters and (2) seizures, which can be divided into two subcategories: (a) investigatory detentions and (b) arrests. See State v. Bryant, 161 S.W.3d 758, 761 (Tex. App.—Fort Worth 2005, no pet.) (citing State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002). Police do not need to suspect an individual of any criminal wrongdoing before they engage in a consensual encounter with a person. Florida v. Royer, 460 U.S. 491, 497 (1983). But once a person submits to either physical restraint or an official show of authority by the police, the person has been “seized” for Fourth Amendment purposes. Florida v. Bostick, 501 U.S. 429, 434 (1991). But when an officer approaches him to ask him questions or permission to search him, his possessions, or his property, the person has not been “seized” as long as a reasonable person in the same circumstances would feel “free to refuse” the officer’s demands. Id. at 431. And whether a reasonable person would feel free to refuse an officer’s demands is a “totality of the circumstances” consideration. Id. at 439-40. Yet when an officer merely identifies himself and asks if a person is willing to answer questions, a reasonable person will always feel free to refuse the officer’s request and the encounter is consensual. Royer, 460 U.S. at 497. And as long as a person consents to an officer’s request to search him, his possessions, or his property during a consensual encounter, the search does not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures. Florida v. Bostick, 501 U.S. at 433-34.

In Florida v. Bostick, two police officers, one carrying a pistol in a zipped bag, boarded a bus and began questioning its passengers. Id. at 431. The officers approached Bostick and asked for his ticket and identification. Id. After looking at his ticket and identification, the police returned them to him and identified themselves as narcotics agents looking for illegal drugs. Id. at 431-32. The officers, without drawing their weapons or gesturing with the pistol in the bag, asked Bostick if they could search his luggage and told him that he had the right to say no. Id. at 432. Bostick agreed, and the police found cocaine in one of his bags. Id. At trial, Bostick argued the police had “seized” him, his consent to search his luggage was tainted by an illegal detention, and therefore, the cocaine must be suppressed because it was the fruit of an illegal detention. Id. at 432-33. The Supreme Court rejected Bostick’s claim, holding a reasonable person who had been approached in the same, non-accusatory way as he had would have felt free to refuse the officers’ request to search his luggage. Id. at 439-40.

Texas courts have also considered when a reasonable person would feel free to leave when a police officer approaches him. In Harper v. State, a police officer responded to a call that a woman was passed out in her car in a Walgreen’s parking lot. 217 S.W.3d 672, 674 (Tex. App.—Amarillo 2007, no pet. h). When he arrived, the officer found that EMS was already attending to her. Id. Harper was slow to respond to questions posed to her and was groggy. Id. Concerned about Harper’s ability to drive home safely, the officer asked her to step out of her car. Id. When she did, a bag of methamphetamine fell from her lap to the ground. Id. Harper argued that officer’s request to step out of the car escalated an otherwise consensual encounter to a seizure, but the court rejected her argument, holding the police officer was merely trying to resolve the call he had received and a reasonable person in her situation would have felt free to leave. Id. at 675.

But in Hayes v. State, an officer’s consensual encounter with Hayes escalated to a seizure. An officer observed Hayes, who he had arrested before for selling drugs, crossing the road. 132 S.W.3d 147, 150 (Tex. App.—Austin 2004, no pet.). The officer, thinking Hayes may have had warrants issued for his arrest, initiated a conversation with Hayes and asked for Hayes’ identification. Id. The officer called for backup, and while he ran Hayes’ information, the other officer watched Hayes’ hands, feet, and face to make sure he did not flee and discovered a bag of drugs sticking out of Hayes’ clothing. Id. Because another officer made sure Hayes did not leave, the court held a reasonable person in Hayes’ position would not have felt free to leave, and Hayes had been seized. Id. at 153. The court also held the officer’s suspicion that Hayes may have had warrants issued for his arrest was not a reasonable suspicion to stop Hayes. Id. Therefore, the drugs the officers found on Hayes were suppressed. Id.

Like Harper, the young men were in a parked car when the police approached them. And like the officers in Bostick, the officers merely identified themselves to the young men and asked permission to search their vehicle. Further, the officers did not threaten the young men or point their weapons at them. And unlike the officers in Hayes, prior to the time the young men consented to the search of the vehicle, the officers did not do anything to detain the young men in any way. They merely approached the car, identified themselves, and asked permission to search the car. Without more, a reasonable person in the young men’s situation would have felt free to refuse the officers’ request to search the vehicle. Therefore, the young men had not been seized when the officers asked for permission to search the vehicle, and no violation of their Fourth-amendment rights occurred.

And you asked me whether United States v. Valdez helps the young men. In Valdez, a patrol officer pulled Valdez over because it appeared Valdez’s vehicle registration sticker was out of date and the tint on Valdez’s windows was too dark. 267 F.3d 395, 396-97 (5th Cir. 2001). After the officer saw the vehicle’s registration was not expired and the windows’ tint was not too dark, he ran a criminal history check on Valdez, finding he had been convicted of a felony. Id. He also asked the Valdez if he had any drugs or guns, and Valdez voluntarily surrendered a loaded pistol and a rifle. Id. All parties conceded Valdez had been seized when he was pulled over on a traffic stop. Id. at 397-99. Because Valdez had been seized, the Fifth Circuit considered (1) whether the seizure was “justified at its inception,” that is whether the officer had a reasonable suspicion that Valdez was engaged in criminal activity and (2) whether the scope of the officer’s actions were reasonably related to the “circumstances that justified the stop in the first place.” Id. at 398. Valdez argued that while the he had a reasonable suspicion that Valdez was engaged in criminal activity and lawfully stopped him, the officer exceeded the permissible scope of the stop when, after he learned there were no problems with Valdez’s registration sticker and window tint, he ran a criminal background check on Valdez and questioned Valdez about drugs and weapons. Id. The court agreed and suppressed the weapons. Id. at 398-99.

Unlike Valdez, the young men in this case were never “seized.” Because they were never seized, the police were free to ask them any question or to search the vehicle as long as a reasonable person would have felt free to refuse to answer the officer. And the analysis which resulted in the suppression of the weapons which Valdez had with him does not apply to these young men.

Conclusion:

The young men were never “seized” because a reasonable person who had been sitting in his vehicle, was approached by the police, and was asked whether the police could search his car would have felt free to refuse the police’s request. Therefore, their Fourth-amendment rights were not violated.

Admissibility of Authenticated Copies of Judgments to Prove a Prior Conviction

Facts:

During the punishment phase of a trial for a defendant convicted of four counts of sexual assault of a child, the State introduced a judgment of conviction for a prior sexual assault of a child and a judgment revoking probation for that conviction to prove the defendant had committed a prior sexual assault of a child. The judgment of conviction had a poor quality fingerprint, but the judgment revoking probation had a good-quality fingerprint which was sufficient to compare to fingerprints which the State had taken from the defendant. The State used an expert to prove the fingerprints from the defendant matched the fingerprints from the revocation judgment. But the State’s expert could not testify that the fingerprint on the judgment of conviction matched the fingerprints taken from the defendant, and the defense objected to the admission of the judgment of conviction because the expert could not testify under oath that the fingerprint on the judgment of conviction matched the defendant’s fingerprints.

The State requested its witness to read the names, cause numbers, and dates of birth listed on both the judgment of conviction and the judgment revoking probation. The prosecutor listed this data on the court white board to link the judgment of conviction to the judgment revoking probation. And over the defense’s objection, the court admitted the judgment of conviction.

Issue:

Did the court err by admitting the judgment of conviction?

Short Answer:

No. The fingerprints pertaining to the prior offense do not need to be physically attached to the judgment of conviction proving the defendant had committed a prior offense. But the State must provide evidence connecting the document proving the prior conviction and the document containing the fingerprints used to prove the person described by the documents is the defendant. And the State used the names, dates of birth, and the cause numbers listed on the documents to link the fingerprints in the judgment of revocation to the judgment of conviction.

Discussion:

There is no exclusive way to prove a defendant has been convicted of prior offenses. Aldridge v. State, 732 S.W.2d 396, 396 (Tex. App.—Dallas 1987, pet. ref’d). And the State may use authenticated copies of judgments or penitentiary packets to prove the prior offenses. Griffin v. State, 181 S.W.3d 818, 820 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d), Aldridge, 732 S.W.2d at 396. But the State must also provide evidence the person described by the authenticated documents is the defendant for the documents to be admissible. Griffin, 181 S.W.3d at 820; Davila v. State, 930 S.W.2d 641 (Tex. App.—El Paso 1996, pet. ref’d). The most common evidence provided to prove the person described in the documents is the defendant is fingerprints, but it is not the only way. Griffin, 181 S.W.3d at 820. And when fingerprints are used, the document containing the fingerprints from the prior conviction does not need to be physically attached to the authenticated judgment of conviction for a prior offense for the document to be admissible as long as the State has other means of proving the two documents pertain to the same case. Davila, 930 S.W.2d at 653.

In Davila v. State, the State used a penitentiary packet and a fingerprint card from the packet during the punishment phase of Davila’s trial to prove Davila had been convicted of a prior offense. Id. at 652. Davila objected to the admissibility of the penitentiary packet because the fingerprint card pertaining to the packet had not been physically attached to the packet. Id. at 652-53. The court of appeals noted the same name was on the packet as on the fingerprint card, and the Texas Department of Corrections number on the fingerprint card matched both the number on the packet and a photograph of the defendant within the packet. Id. at 653. Stating any deficiencies in the condition of the evidence pertained to the weight of the evidence and not its admissibility, the court held the packet and fingerprint card were admissible into evidence. Id.

And there is no substantial difference between the fingerprints in the judgment revoking probation and the fingerprint card in Davila.[1] The fingerprints used to prove the defendant had been convicted of a prior sexual assault of a child were not physically attached to the judgment of conviction. Rather, they were in the judgment revoking probation. But the State produced evidence which linked the fingerprints in the judgment revoking probation to the judgment of conviction: The names on the judgment of conviction and the judgment of revocation were the same; the dates of birth listed on both judgments were the same, and the cause numbers on both judgments were the same. Because both documents contained identical identifying information, the State proved the documents pertained to the same case.

Thus, the State linked the fingerprints on the judgment revoking probation to the judgment of conviction. Because the State linked the two judgments together and linked the defendant’s fingerprints to the fingerprints contained in the judgment revoking probation, the court did not err in admitting the judgment of conviction to prove the defendant had been convicted of a prior sexual assault of a child.

Endnote:

[1] The poor-quality of the fingerprint on the judgment of conviction does not bear on the admissibility of the document because the State was able to link the judgment of conviction to the judgment revoking probation. Instead, the poor quality of the fingerprint bears on the weight of the evidence. Davila v. State, 930 S.W.2d 641 Tex. App.—El Paso 1996, pet. ref’d). And even then it is unlikely a court will find the evidence was insufficient to find the defendant had been convicted of a prior sexual assault of a child. See generally Griffin v. State, 181 S.W.3d 818, 820 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (holding a penitentiary packet which did not contain any fingerprints was sufficient to prove Griffin had been convicted of a prior felony because it contained other identifying information: gender, skin color, height, date of birth, name, alias, eye color, and hair color).

DWI Enhancement

Issue:

Can a defendant’s prior DWI convictions which occurred greater than ten years ago be used to enhance a DWI committed in 2007 to a third-degree felony?

Short Answer:

Yes. In 2005, the Texas Legislature repealed Tex. Pen. Code Ann. § 49.09(e) which had prohibited the use of DWI convictions occurring more than ten years prior to a current DWI offense to enhance the current DWI offense to a third-degree felony. Act of June 18, 2005, 79th Leg., R.S., ch. 996 § 3, 2005 Tex. Gen. Laws 3363, 3365.

Discussion:

If a person commits two DWI offenses and subsequently commits a third, the third DWI can be enhanced to a third-degree felony. Tex. Pen. Code Ann. § 49.09 (Vernon Supp. 2006). But before September 1, 2005, at least one of the prior DWI convictions must have occurred within ten years of the current offense. Act of April 22, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3697 (amended 2001). But as long as the person was convicted and finished probation, jail time, or parole for all of his prior DWI convictions more than ten years prior to his current conviction, the State could not use them against him. Act of April 22, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3697 (amended 2001). But the Texas Legislature repealed that prohibition in 2005. See Tex. Pen. Code Ann. § 49.09 (Vernon Supp. 2006). Because the prohibition has been repealed, prior DWI convictions, even those occurring more than ten years ago, can be used to enhance a DWI to a third-degree felony.

But there is an exception: If the DWI offense for which the defendant is currently accused occurred prior to September 1, 2005, then the State can enhance the offense with two prior DWI convictions only if one of the two convictions occurred within ten years of the current offense. Act of June 18, 2005, 79th Leg., R.S., ch. 996 § 4, 2005 Tex. Gen. Laws 3363, 3365; see generally Bowers v. State, 77 S.W.3d 514 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Furthermore, if the two prior DWI convictions occurred more than ten years apart from each other, then the later cannot be used to enhance a DWI offense committed before September 1, 2007 to a third-degree felony. State v. Verhoeven, 151 S.W.3d 637, 642-43 (Tex. App.—Fort Worth 2004, pet. ref’d).

Yet this exception does not apply to a DWI committed in 2007 because it occurred after the September 1, 2005 repeal of Tex. Pen. Code Ann. § 49.09(e).

Conclusion:

Because the DWI offense occurred after September 1, 2005, any prior DWI convictions can be used to enhance it to a third-degree felony.

Possession

Facts:

A young man standing in a yard at night spots a police officer and flees. The police officer goes to where the young man had been standing and finds drugs. The young man is later apprehended and charged with possession of a controlled substance even though no drugs are found on him.

Issue:

Was the young man in possession of the drugs?

Short Answer:

No. The evidence is insufficient to prove beyond a reasonable doubt that the young man possessed—had care, custody, control, or management over—the drugs. While it is true the young man ran when he saw the police and the police found drugs where he was standing, the police did not see the young man holding anything before he started running; the quantity of drugs found where the young man was standing was small, making it more likely that someone else may have inadvertently dropped or discarded them, and the police did not see the young man drop or throw anything when he ran.

Discussion:

A person must have “actual care, custody, control, or management” over a controlled substance for her to possess it, and it need not be found on her body. Tex. Pen. Code Ann. § 1.07(a)(39) (Vernon 2003); Williams v. State, 906 S.W.2d 58, 65-66 (Tex. App.—Tyler 1995, pet. ref’d). And the person does not need to have exclusive possession of the place where the drugs are found. Howell v. State, 906 S.W.2d 248, 252-53 (Tex. App.—Fort Worth 1995, pet. ref’d). But the person’s mere presence at the location where a controlled substance is found is “insufficient, by itself,” to convict a person for possessing the controlled substance. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). Rather, the State must establish an affirmative link between the person and the controlled substance. Id. at 162. To establish this “affirmative link,” courts have used numerous factors—including a person’s presence at the location where drugs are found—none of which are necessary to prove the affirmative link between the person and the controlled substance. Parker v. State, 192 S.W.3d 801, 805 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). And it is not the number of factors in a particular case but the “logical force” created by the factors which proves or disproves the person’s contact with the controlled substance was not simply “fortuitous.” Id.

The following is a list of non-exclusive factors which the courts have used to determine whether there is an affirmative link between a person and a controlled substance:

(1) the contraband was in plain view; (2) the contraband was conveniently accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the accused was the driver of the automobile in which the contraband was found; (5) the contraband was found on the same side of the car seat as the accused was sitting; (6) the place where the contraband was found was enclosed; (7) the strong odor of [drugs] was present; (8) paraphernalia to use the contraband was in view of or found on the accused; (9) conduct by the accused indicated a consciousness of guilt; (10) the accused had a special connection to the contraband; (11) occupants of the automobile gave conflicting statements about relevant matters; (12) the physical condition of the accused indicated recent consumption of the contraband found in the car; (13) traces of the contraband were found on the accused; and (14) affirmative statements connect the accused to the contraband.

Howell v. State, 906 S.W.2d 248, 252-53 (Tex. App.—Fort Worth 1995, pet. ref’d). Other courts have added “[15] the place where the contraband was found was enclosed, [16] the quantity of the drugs found, [17] the accused possessed a key to the locked location of the drugs, and [18] the accused was in close proximity to a large quantity of contraband.” Broche v. State, 927 S.W.2d 745, 751 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d).[1]

In Simmons v. State, 100 S.W.3d 484 (Tex. App.—Texarkana 2003, pet. ref’d), the court used several of these factors to find Simmons was in possession of drugs. A police officer spotted a speeding car in which Simmons was a passenger and pulled it over. Id. at 488. When the car stopped, Simmons fled the car into nearby woods carrying a white bag. Id. The officer called for a canine unit to search for Simmons, and during the search, the canine found a white Wendy’s bag buried under a pile of leaves which matched the description of the bag the officer saw Simmons carrying. Id. at 489. Inside the bag was 1000 grams of cocaine. Id. Simmons was apprehended and convicted for possession of cocaine with the intent to distribute. Id. Simmons argued the State had failed to prove an affirmative link between Simmons and the cocaine, but the court enumerated the factors which proved the affirmative link: (1) Simmons fled into the woods when the officer stopped the car he was riding in; (2) the officer who stopped them saw Simmons carrying a white bag while he fled; (3) the police found a white bag matching the description of the bag the officer saw, and (4) someone had made great efforts to conceal the bag beneath a pile of leaves. Id. at 491. Therefore, the court overruled Simmons’ argument. Id.

Additionally, in In re J.M.C.D., 190 S.W.3d 779 (Tex. App.—El Paso 2006, no pet.), a border patrolman near El Paso spotted six individuals attempting to cross the Mexico-United States border at 3:30 a.m. Id. at 780. Five of the individuals were hunched over, indicating to the patrolman that they were carrying large quantities of drugs. Id. The patrolman pursued the individuals who ran from him. Id. The patrolman apprehended the individuals in an irrigation ditch but did not find any drugs on them. Id. But the patrolman followed the footprints leading to the ditch to five backpacks containing a total of 266 pounds of marijuana. Id. The court held J.M.C.D. was in possession of the marijuana because (1) the marijuana was found near where J.M.C.D. had been standing, as evidenced by the trail of footprints; (2) J.M.C.D. had run from the patrolman; (3) the patrolman saw six individuals carrying something and apprehended six individuals, including J.M.C.D., who were not carrying anything but whose footprints led to 266 pounds of marijuana, and (4) it was unlikely another person “would have discarded such a large quantity of marijuana.” Id at 781. That is, the logical force created by these factors affirmatively linked J.M.C.D. to the marijuana and proved his contact with it was not merely fortuitous.

And like Simmons and J.C.M.D., the police did not find drugs on the young man. Instead, they found drugs in a yard where the young man had been standing. But the young man did not have exclusive possession of the yard, and someone else may have discarded or dropped the drugs. Because the young man did not have exclusive possession of the yard, the State must prove an affirmative link between the young man and the drugs.

To establish an affirmative link between the young man and the boy, the court will consider the factors surrounding the discovery of the drugs and the arrest of the young man. Like Simmons and J.C.M.D., (1) the young man was near where the drugs were found, and (2) he ran when he saw the police, indicating a consciousness of guilt. But unlike Simmons and J.C.M.D., (3) the police did not see the young man holding anything before he started running, and (4) the quantity of drugs found where the young man was standing was small, making it more likely that someone else may have inadvertently dropped or discarded them. And (5) the police did not see the young man drop or throw anything when he ran.

The decisive distinction between the young man and Simmons and J.C.M.D. is that the police did not see the young man holding anything prior to the chase, nor did they see him make any motion to discard anything before he started running. See Hawkins v. State, 99 S.W.3d 890, 895-96 (Tex.App.—Corpus Christi 2003) rev’d on other grounds, 135 S.W.3d 72, (Tex. Crim. App. 2004); Richardson v. State, 2003 WL 1848624 *1, *4 (Tex.App.—Dallas, April 10, 2003) (not designated for publication); Supra note 1. Consider also Tatum v. State, 836 S.W.2d 323, 324, 327 (Tex. App.—Austin 1992, pet. ref’d). Had the arresting officers seen him holding or discard something, the courts would have found the young man to have had care, custody, control or management over the drugs found in the yard. But because the officers did not see the young man holding or discard anything, there is little logical force linking the young man to the drugs. And the State fails to create an affirmative link between the young man and the drugs because the connection between them is merely fortuitous.

Therefore, the young man was not in possession of the drugs.

Conclusion:

The factors indicating the young man was in possession of the drugs—the drugs were conveniently accessible to the young man when he was standing in the yard, and the young man ran when he saw the police, indicating a consciousness of guilt—do not affirmatively link him to the drugs because the police did not see the young man holding anything before he started running; the quantity of drugs found where the young man was standing was small, making it more likely that someone else may have inadvertently dropped or discarded them, and the police did not see the young man drop or throw anything when he ran.

Endnote:

[1] This has been the standard for more than fifteen years. Prior to the establishment of these principles, the Austin Court of Appeals decided Tatum v. State. At least one court of appeals has refused to consider Tatum as precedent because of its use of the outdated legal standard. See Arevalo v. State, 2006 WL 332627 *3, (Tex. App.—San Antonio Feb. 15, 2006, pet. ref’d) (not designated for publication). But the facts in Tatum best approximate the facts presented, and the case may prove useful.

In Tatum, the police approached an abandoned building in an attempt to find two men. 836 S.W.2d 323, 323 (Tex. App.—Austin 1992, pet. ref’d). Tatum was in the building, and when he saw the police, he climbed out a window and ran. Id. The police chased Tatum, and after he hopped a fence, Tatum fell. Id. Tatum attempted to get up and run but was apprehended. Id. at 324. Near Tatum, the police found a syringe filled with cocaine. Id. The police did not see anything in Tatum’s hands during the chase and only saw Tatum make two minor gestures right before he was apprehended. Id. And the area where Tatum was apprehended was known to be a high-drug use area. Id. Considering these facts, the court held the evidence was insufficient to create an affirmative link between Tatum and the syringe. Id. at 327.

Use of Prior DWI Convictions to Enhance a the Penalty for a DWI Offense

Issue:

Can a defendant’s prior DWI convictions which occurred greater than ten years ago be used to enhance a DWI committed in 2007 to a third-degree felony?

Short Answer:

Yes. In 2005, the Texas Legislature repealed Tex. Pen. Code Ann. § 49.09(e) which had prohibited the use of DWI convictions occurring more than ten years prior to a current DWI offense to enhance the current DWI offense to a third-degree felony. Act of June 18, 2005, 79th Leg., R.S., ch. 996 § 3, 2005 Tex. Gen. Laws 3363, 3365.

Discussion:

If a person commits two DWI offenses and subsequently commits a third, the third DWI can be enhanced to a third-degree felony. Tex. Pen. Code Ann. § 49.09 (Vernon Supp. 2006). But before September 1, 2005, at least one of the prior DWI convictions must have occurred within ten years of the current offense. Act of April 22, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3697 (amended 2001). But as long as the person was convicted and finished probation, jail time, or parole for all of his prior DWI convictions more than ten years prior to his current conviction, the State could not use them against him. Act of April 22, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3697 (amended 2001). But the Texas Legislature repealed that prohibition in 2005. See Tex. Pen. Code Ann. § 49.09 (Vernon Supp. 2006). Because the prohibition has been repealed, prior DWI convictions, even those occurring more than ten years ago, can be used to enhance a DWI to a third-degree felony.

But there is an exception: If the DWI offense for which the defendant is currently accused occurred prior to September 1, 2005, then the State can enhance the offense with two prior DWI convictions only if one of the two convictions occurred within ten years of the current offense. Act of June 18, 2005, 79th Leg., R.S., ch. 996 § 4, 2005 Tex. Gen. Laws 3363, 3365; see generally Bowers v. State, 77 S.W.3d 514 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Furthermore, if the two prior DWI convictions occurred more than ten years apart from each other, then the later cannot be used to enhance a DWI offense committed before September 1, 2007 to a third-degree felony. State v. Verhoeven, 151 S.W.3d 637, 642-43 (Tex. App.—Fort Worth 2004, pet. ref’d).

Yet this exception does not apply to a DWI committed in 2007 because it occurred after the September 1, 2005 repeal of Tex. Pen. Code Ann. § 49.09(e).

Conclusion:

Because the DWI offense occurred after September 1, 2005, any prior DWI convictions can be used to enhance it to a third-degree felony.