Damian Wayne Hennington v. State

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-02-00006-CR

______________________________

DAMIAN WAYNE HENNINGTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 202nd Judicial District Court

Bowie County, Texas

Trial Court No. 01-F-0119-202

Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Carter

O P I N I O N

Damian Wayne Hennington was tried before a jury and found guilty of felony possession of

marihuana. He was sentenced to four years' imprisonment and assessed a fine of $5,000.00. He now

appeals.

On October 4, 2000, Gary Brown, an officer with the Texarkana, Texas, Police Department,

stopped the driver of a 1992 Oldsmobile minivan for failing to signal intent to turn not less than the

last 100 feet before the turn. Eventually, Hennington gave consent to search his vehicle and signed

the consent form. Brown discovered a black duffel bag behind the back seat with 27.4 pounds of

marihuana in a plastic bag surrounded by fabric softener. Brown did not find any other controlled

substances or drug paraphernalia in the van. Possession of marihuana in this amount is a second-degree felony subject to imprisonment of not more than twenty years or less than two years. Tex.

Health & Safety Code Ann. § 481.121 (Vernon 2003); Tex. Pen. Code Ann. § 12.33 (Vernon

2003).

Hennington asserts four points, alleging as error: (1) the denial of his motion to suppress,

(2) finding his consent to the search was voluntary in light of the illegal detention, (3) that the

evidence was legally and factually insufficient, and (4) that the accomplice witness testimony was

not sufficiently corroborated. We will address Hennington's third point of error before the fourth

point of error, since it should be decided before considering factual and legal sufficiency.

In his first point of error, Hennington contends the motion to suppress should have been

granted because the purpose of the traffic stop had concluded and there were no articulable facts to

support reasonable suspicion justifying further detention and search.

A trial court's decision to grant or deny a motion to suppress is reviewed under an abuse of

discretion standard. Villarreal v. State , 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). The general

rule is that an appellate court should afford almost total deference to a trial court's determination of

the historical facts supported by the record, especially when the trial court's fact-findings are based

on an evaluation of credibility and demeanor. Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App.

1997); Villarreal , 935 S.W.2d at 138 . Where, as here, a trial court makes no explicit findings of

historical fact, the appellate court should view the evidence in the light most favorable to the trial

court's ruling and assume the trial court made implicit findings of fact. Carmouche v. State , 10

S.W.3d 323, 328 (Tex. Crim. App. 2000). When the facts are undisputed and the court is presented

with a pure question of law, de novo review is proper. Oles v. State , 993 S.W.2d 103, 106 (Tex.

Crim. App. 1999).

The search of Hennington's vehicle occurred without a warrant. Brown had stopped

Hennington for failure to signal a turn. See Tex. Transp. Code Ann. § 545.104 (Vernon 1999).

A law enforcement officer may lawfully stop and detain a person for a traffic violation. Garcia v.

State , 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). "A routine traffic stop resembles an

investigative detention." State v. Cardenas , 36 S.W.3d 243, 246 (Tex. App.-Houston [1st Dist.]

2001, pet. ref'd). "An investigative detention must be temporary and last no longer than is necessary

to effectuate the purpose of the stop." Davis v. State , 947 S.W.2d 240, 245 (Tex. Crim. App. 1997)

(quoting Lopez v. State , 663 S.W.2d 587, 589 (Tex. App.-Houston [1st Dist.] 1983, pet. ref'd)).

"Additionally, Texas Courts recognize that investigative detentions become unreasonable when they

are not reasonably related in scope to the circumstances which justified the interference in the first

place." Davis , 947 S.W.2d at 244 . After an officer concludes the investigation of the traffic

violation, the officer cannot continue to detain or question the defendant unless the officer has

reasonable suspicion to believe another offense is being committed. Davis , 947 S.W.2d at 243 ;

Cardenas , 36 S.W.3d at 246 .

Courts recognize that during a traffic stop the officer has a right to check for outstanding

warrants and to examine the detainee's driver's license, insurance, and identification. Powell v. State ,

5 S.W.3d 369, 377 (Tex. App.-Texarkana 1999, pet. ref'd). The law enforcement officer may ask

about the driver's destination and purpose for traveling during a valid detention, but the detainee is

not required to answer. Cardenas , 36 S.W.3d at 246 ; see Powell , 5 S.W.3d at 377 . Before

requesting consent to search the vehicle, Brown had already ascertained Hennington had proper

registration, insurance, and no outstanding warrants. He had also informed Hennington he would

be receiving a warning for the traffic violation. At this point, the purpose of the detention for the

traffic violation had ended. However, if an officer develops reasonable suspicion before the officer

concludes his initial investigation, further detention is justified. Powell , 5 S.W.3d at 379 .

Further detention for investigation beyond the traffic violation requires Brown to have a

reasonable suspicion of further criminal activity. The United States Supreme Court in Terry v. Ohio

established a two-pronged test for investigative detentions. To determine the reasonableness of an

investigative detention, the court must inquire: "(1) whether the officer's action was justified at its

inception; and, (2) whether it was reasonably related in scope to the circumstances which justified

the interference in the first place." Davis , 947 S.W.2d at 242 ; see Terry v. Ohio , 392 U.S. 1, 19-20

(1968).

"Under the first prong, 'the police officer must be able to point to specific and articulable

facts which, taken together with rational inferences from those facts, reasonably warrant that

intrusion.'" Davis , 947 S.W.2d at 242 (citing Terry , 392 U.S. at 21 ). The specific articulable facts,

along with rational inferences from those facts, must allow the officer to reasonably conclude the

person detained actually is, has been, or soon will be engaged in criminal activity. United States v.

Sokolow , 490 U.S. 1, 10 (1989). The facts established at the suppression hearing are as follows. (1)

Brown observed that Hennington appeared nervous. Hennington's hands were shaking, and he

avoided eye contact. In addition, the passenger's and Hennington's stories conflicted. (2) Brown was

aware Hennington was coming from a "source city." Further, Brown could detect a strong odor of

marihuana. A law enforcement officer may rely on information, obtained in the course of the

officer's contact with a citizen, in justifying further detention. Ortiz v. State , 930 S.W.2d 849, 856

(Tex. App.-Tyler 1996, no pet.).

Hennington argues Brown did not have sufficient specific articulable facts to justify further

detention. In support of this, he cites McQuarters v. State , 58 S.W.3d 250 (Tex. App.-Fort Worth

2001, pet. ref'd), which held that nervousness alone is not sufficient to create reasonable suspicion.

Hennington also cites Davis , which held that nervousness, a prior drug conviction by the passenger,

inconsistencies between the driver's and passenger's stories, and attire that was incompatible for the

stated purpose of the trip were not sufficient to give rise to a reasonable suspicion. Davis , 947

S.W.2d at 245-46 . Davis and McQuarters are distinguishable from the current case because, here,

Brown detected the odor of marihuana. Davis specifically relied on the fact there was no odor of

drugs emanating from the vehicle. Id . at 246. The odor of marihuana, by itself, is sufficient to

develop reasonable suspicion that criminal activity is occurring. (3) Because the odor of marihuana in

addition to the other specific articulable facts is sufficient to create reasonable suspicion, Brown

could lawfully detain Hennington in order to investigate.

The second prong of Terry requires the scope of the detention "like any other search, must

be strictly circumscribed by the exigencies which justify its initiation." Davis , 947 S.W.2d at 243

(quoting Terry , 392 U.S. at 25-26 ). The officer, however, must diligently pursue a means of

investigation that lasts no longer than is necessary and the search should be by the "least intrusive

means reasonably available." Id. at 245. Brown had reasonable suspicion that criminal drug activity

was occurring and limited his investigation to the drug activity. A search conducted with effective

consent is reasonable despite the absence of a search warrant or even probable cause. Jackson v.

State , 968 S.W.2d 495, 498 (Tex. App.-Texarkana 1998, pet. ref'd). Assuming Hennington freely

and voluntarily consented to the search, the search was lawful.

In his second point of error, Hennington contends he did not voluntarily grant consent to

search. (4) The standard of review for consent to search questions is whether the trial court abused its

discretion in finding the consent sufficient. Id . To be valid, consent to search must be given freely

and voluntarily. (5) Appellate courts should view the evidence in the light most favorable to the ruling

of the trial court. See Sandoval v. State , 860 S.W.2d 255, 257 (Tex. App.-Houston [1st Dist.] 1993,

pet. ref'd).

Hennington alleges that, when he asked what would happen if he denied consent, Brown told

him he would keep him there all night and threatened to get his drug dog out of the car. No direct

evidence of this statement was introduced at the suppression hearing. Hennington testified at trial

that Brown told him, "We will be here all night." At the suppression hearing, Brown denied saying,

"I'm going to keep you here all night." Officer Scott Sartor, who arrived before the search but after

the initial detention, testified he could not recall whether the statement was made. Brown testified

that Hennington was not handcuffed or placed under arrest until after he found the drugs. The trial

court found Hennington gave consent freely and voluntarily. When the evidence is conflicting, the

trial court determines the credibility of the witnesses. Since appellate courts should grant almost

total deference to the trial court's determination as to the credibility of a witness, we cannot find the

trial court abused its discretion in finding Hennington's consent was voluntary.

Hennington asserts, as his fourth point of error, that the accomplice witness testimony lacked

sufficient corroboration. Hennington argues that the nonaccomplice evidence is not sufficient to

connect him to the crime. He contends the only corroborating evidence was his presence at the

scene, which is insufficient. The State argues that Hennington's nervousness, the odor of marihuana,

Hennington's knowledge of the drug trade, and his presence at the scene as the driver of the vehicle

are sufficient "suspicious circumstances" to corroborate the accomplice witness testimony.

"The test for weighing the sufficiency of corroborative evidence is to eliminate from

consideration the testimony of the accomplice witness and then examine the testimony of other

witnesses to ascertain if there is evidence which tends to connect the accused with the commission

of the offense." Hernandez v. State , 939 S.W.2d 173, 176 (Tex. Crim. App. 1997) (citing Reed v.

State , 744 S.W.2d 112, 125 (Tex. Crim. App. 1988)); see Edwards v. State , 427 S.W.2d 629, 632

(Tex. Crim. App. 1968). The nonaccomplice evidence does not need to prove all the elements of

the alleged offense. Hernandez , 939 S.W.2d at 176 ; Underwood v. State , 967 S.W.2d 925, 928 (Tex.

App.-Beaumont 1998, pet. ref'd). The nonaccomplice evidence does not have to directly link the

accused to the commission of the offense. Munoz v. State , 853 S.W.2d 558, 559 (Tex. Crim. App.

1993); Reed v. State , 744 S.W.2d 112, 126 (Tex. Crim. App. 1988). The accomplice witness rule

only requires that there be some nonaccomplice evidence which "tends to connect" the accused to

the commission of the offense alleged in the indictment. Hernandez , 939 S.W.2d at 176 .

Mere presence of a defendant at the scene of the crime is insufficient to corroborate

accomplice witness testimony. Cox v. State , 830 S.W.2d 609, 611 (Tex. Crim. App. 1992); Beathard

v. State , 767 S.W.2d 423, 428 (Tex. Crim. App. 1989); Howard v. State , 972 S.W.2d 121, 127 (Tex.

App.-Austin 1998, no pet.). Hennington cites Rios as support for the proposition that his presence

at the scene is insufficient to corroborate accomplice witness testimony. See Rios v. State , 982

S.W.2d 558 (Tex. App.-San Antonio 1998, pet. ref'd). In Rios , the San Antonio Court of Appeals

held the State presented insufficient evidence "tending to connect" the crime to a passenger present

in a car which contained marihuana. Id. at 561 (holding the glance the driver gave to the passenger

not evidence of nervous or furtive behavior on the part of the passenger). Rios stands for the

proposition that, absent any other "suspicious circumstances," mere presence at the scene is

insufficient to corroborate accomplice witness testimony. The current situation can be distinguished

because "suspicious circumstances" do exist.

As the Texas Court of Criminal Appeals stated in Brown , "Proof that the accused was at or

near the scene of the crime at or about the time of its commission, when coupled with other

suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient

corroboration to support a conviction." Brown v. State , 672 S.W.2d 487, 489 (Tex. Crim. App.

1984). Cumulative circumstantial evidence of "suspicious circumstances" can be sufficient evidence

which "tends to connect" a defendant to the alleged offense, even if none of the circumstances would

be sufficient individually. (6)

Sufficient "suspicious circumstances" exist to corroborate the accomplice witness testimony.

A strong odor of marihuana emanated from the vehicle. Hennington's nervous behavior created

another suspicious circumstance. Hennington's hands were shaking, and he avoided eye contact.

Courts have held that nervous and furtive behavior can rise to the level of a "suspicious

circumstance." (7) In addition, Hennington was the driver of and had control over, if not actual

ownership of, the vehicle. (8) Texas courts have recognized that the status of being the driver may be

a "suspicious circumstance." (9) Corroborating testimony is not required to directly link the defendant

to the crime or to prove each element of the offense, e.g., his or her knowledge of the marihuana.

See Hernandez , 939 S.W.2d at 176 ; Underwood , 967 S.W.2d at 928 . We hold that the odor of

marihuana, Hennington's nervousness, and the fact that Hennington was the driver and had control

over the vehicle create sufficient "suspicious circumstances" which, combined with his presence at

the scene of the crime, are sufficient to connect him with the crime. Since nonaccomplice evidence

exists which tends to connect Hennington to the crime, the accomplice witness testimony was

sufficiently corroborated.

In his third point of error, Hennington contends the evidence is legally and factually

insufficient to support his conviction. He argues that the evidence was insufficient to prove he

intentionally and knowingly possessed a controlled substance.

In our review of the legal sufficiency of the evidence, we employ the standards set forth in

Jackson v. Virginia , 443 U.S. 307, 319 (1979). This calls on this Court to view the relevant 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 crime beyond a reasonable doubt. Johnson v. State , 23 S.W.3d

1, 7 (Tex. Crim. App. 2000); Turner v. State , 805 S.W.2d 423, 427 (Tex. Crim. App. 1991).

In contrast to legal sufficiency, a factual sufficiency review dictates that the evidence be

viewed in a neutral light, favoring neither party. Johnson , 23 S.W.3d at 7 ; see Clewis v. State , 922

S.W.2d 126, 134 (Tex. Crim. App. 1996). In determining the factual sufficiency of the evidence to

establish the elements of the offense, we view all the evidence in a neutral light and set aside the

verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong,

or so weak as to be clearly wrong or manifestly unjust. Johnson , 23 S.W.3d at 7 ; Clewis , 922

S.W.2d at 129 .

To support a conviction for second-degree felony possession of marihuana, the State must

prove: (1) a person knowingly or intentionally, (2) possesses, (3) a useable quantity of marihuana,

more than five pounds and less than fifty pounds. Tex. Health & Safety Code Ann. § 481.121 .

The Texas Health and Safety Code defines "possession" as "actual care, custody, control, or

management." Tex. Health & Safety Code Ann. § 481.002 (Vernon 2003); Jones v. State , 963

S.W.2d 826, 830 (Tex. App.-Texarkana 1998, pet. ref'd). To show possession, the State can use

direct or circumstantial evidence. Brown v. State , 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).

Hennington concedes that the only element at issue was his knowledge of the marihuana. The Texas

Court of Criminal Appeals has held that "a person may not be convicted for possession of a

controlled substance unless it is proved that he possessed the substance 'intentionally or knowingly.'"

Id. at 744 . Mere possession of a vehicle containing contraband is not sufficient to sustain a

conviction. Jones , 963 S.W.2d at 830 .

In matters concerning credibility of witnesses, an appellate court "should not substantially

intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony."

Jones v. State , 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). Matters concerning an evaluation of

credibility and demeanor are the sole province of the jury. Cain v. State , 958 S.W.2d 404, 408-09

(Tex. Crim. App. 1997). Hennington denied knowledge he had marihuana in his vehicle. Jackson,

though, testified Hennington knew the marihuana was present. We must defer to the jury's

assessment of credibility.

In addition to Jackson's testimony, there are affirmative links between Hennington and the

marihuana. "In reviewing the sufficiency of the evidence to establish a defendant's knowledge of

and control over contraband, the existing body of law describing affirmative links between a

defendant and contraband is an appropriate means of determining legal and factual sufficiency of the

evidence on review." Green v. State , 892 S.W.2d 220, 222 (Tex. App.-Texarkana 1995, pet. ref'd);

see Villarreal v. State , 865 S.W.2d 501 (Tex. App.-Corpus Christi 1993, pet. ref'd). This Court has

held that factors which should be considered when evaluating whether an affirmative link exists are:

1) the defendant's presence when the search was executed; 2) whether the contraband

was in plain view; 3) the defendant's proximity to and the accessibility of the

contraband; 4) whether the defendant was under the influence of a controlled

substance when arrested; 5) whether the defendant possessed other contraband 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 the contraband; 10) whether other

contraband or drug paraphernalia was present; 11) whether defendant owned or had

the right to possess the place where the drugs were found; and 12) whether the place

the drugs were found was enclosed.

Jones , 963 S.W.2d at 830 ; see Chavez v. State , 769 S.W.2d 284, 288 (Tex. App.-Houston [1st Dist.]

1989, pet. ref'd). The affirmative link to the contraband does not need to exclude every other

reasonable hypothesis except the defendant's guilt. Brown , 911 S.W.2d at 748 .

"The number of factors present is not as important as the degree to which the factors tend to

affirmatively link the accused to the contraband." Williams v. State , 906 S.W.2d 58, 65 (Tex.

App.-Tyler 1995, pet. ref'd). Hennington was the driver of the van and was present when Brown

discovered the marihuana. Hennington admitted having smoked marihuana in his car on the trip

from Dallas. Brown testified he noticed an odor of marihuana and fabric softener in the van. Brown

observed that Hennington appeared very nervous. Hennington's hands were shaking, and he avoided

eye contact. The marihuana was located in an enclosed van. Hennington acknowledged that the

marihuana was in "[his] automobile." Hennington obviously had the right to possess the place where

the marihuana was found. We hold that sufficient evidence exists to affirmatively link Hennington

to the marihuana.

Based on Jackson's testimony and the above affirmative link analysis, a rational juror could

have found beyond a reasonable doubt that Hennington knew of the marihuana. Further, the verdict

is not so contrary to the overwhelming weight of the evidence as to be clearly wrong, or so weak as

to be clearly wrong or manifestly unjust. Hennington's third point of error is overruled.

We affirm the trial court's judgment.

Jack Carter

Justice

Date Submitted: July 10, 2003

Date Decided: July 18, 2003

Do Not Publish

1. The general rule that an appellate court should only consider the evidence adduced at the

suppression hearing is inapplicable when the suppression issue has been "consensually relitigated

by the parties during trial." Rachal v. State , 917 S.W.2d 799, 809 (Tex. Crim. App. 1996); Herrera

v. State , 80 S.W.3d 283, 291 (Tex. App.-Texarkana 2002, pet. ref'd) (op. on reh'g). Because

reasonable suspicion was established at the suppression hearing, we will not decide whether the issue

was "consensually relitigated."

2. The record does not contain testimony at the suppression hearing regarding the conflict

between their stories. Hennington testified at trial that they were driving to Texarkana because the

passenger, Trina Jackson, was pregnant and wanted to visit her family. Jackson testified at trial that

they were headed to Tennessee for a drug run. However, the police report, admitted into evidence

for the pretrial hearing only, states that Hennington told Brown they were driving to Texarkana

because Jackson was pregnant and her boyfriend had left her, but Jackson had told the police they

were driving to Texarkana because her grandmother was sick.

3. See Isam v. State , 582 S.W.2d 441, 444 (Tex. Crim. App. [Panel Op.] 1979). Further, we

note that the odor of marihuana, alone, has been held sufficient to establish probable cause to search

a vehicle. Marsh v. State , 684 S.W.2d 676, 679 (Tex. Crim. App. 1984); Small v. State , 977 S.W.2d

771 (Tex. App.-Fort Worth 1998, no pet.); Hernandez v. State , 867 S.W.2d 900, 907 (Tex.

App.-Texarkana 1993, no pet.).

4. Hennington argues his consent was not voluntary due to the illegal detention and comments

made by Brown. Hennington cites Herrera to address the issue of whether consent was sufficiently

purged of the taint from an unlawful detention to render the consent valid. Since we find the

detention lawful, this case is not relevant to our inquiry.

5. See Reasor v. State , 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). The State must show by

clear and convincing evidence that the consent given was voluntary and unequivocal. See State v.

Ibarra , 953 S.W.2d 242, 245 (Tex. Crim. App. 1997) (Mansfield, J., concurring). Whether the

consent to search was in fact voluntary must be determined from the totality of the circumstances.

Schneckloth v. Bustamonte , 412 U.S. 218, 219 (1973); Reasor , 12 S.W.3d at 818 .

6. Lopez v. State , 960 S.W.2d 948, 951 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd)

(presence and other suspicious circumstances); see also Dowthitt v. State , 931 S.W.2d 244, 250 (Tex.

Crim. App. 1996) (blood spatters on clothing); Burks v. State , 876 S.W.2d 877, 888 (Tex. Crim.

App. 1994) (flight); Gill v. State , 873 S.W.2d 45, 49 (Tex. Crim. App. 1994) (possession of stolen

property); Richardson v. State , 879 S.W.2d 874, 880 (Tex. Crim. App. 1993) (motive and ownership

of Uzi); Reed v. State , 744 S.W.2d 112, 127 (Tex. Crim. App. 1988) (recognition of body and

discrepancies in story); Brown v. State , 672 S.W.2d 487, 489 (Tex. Crim. App. 1984) (appearing to

panic, driving away from police, and other suspicious circumstances); Spratt v. State , 881 S.W.2d

65 (Tex. App.-El Paso 1994, no pet.) (furtive gestures, presence, and other suspicious

circumstances).

7. Brown , 672 S.W.2d at 489 (appearing to panic); see also Spratt , 881 S.W.2d at 67 (nervous

furtive gestures); Hill v. State , 832 S.W.2d 724, 726 (Tex. App.-Houston [1st Dist.] 1992, no pet.)

(furtive behavior); De La Rosa v. State , 771 S.W.2d 170, 172-73 (Tex. App.-Austin 1989, no pet.)

(nervous behavior).

8. Hennington referred to the van as "his van." He appears to have exercised exclusive control

over the van, even though there is some indication it belonged to a relative.

9. Underwood v. State , 967 S.W.2d 925, 929 (Tex. App.-Beaumont 1998, pet. ref'd) (fact that

the defendant was the driver and other suspicious circumstances); Young v. State , 842 S.W.2d 364,

365 (Tex. App.-Eastland 1992, no pet.) (fact that the defendant drove accomplice's car and other

suspicious circumstances). But cf. Abu-Shabaam v. State , 848 S.W.2d 782 (Tex. App.-Houston

[14th Dist.]) (driver who did not own the car and no other suspicious circumstances), vacated on

other grounds , 856 S.W.2d 436 (Tex. Crim. App. 1993), distinguished by Underwood , 967 S.W.2d

at 929-30 .