Justice v. State

Corye Len Justice, Appellant v. The State of Texas, Appellee

NO. 03-19-00428-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

June 16, 2021

FROM THE 428TH DISTRICT COURT OF HAYS COUNTY

NO. CR-16-0680, THE HONORABLE WILLIAM R. HENRY, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellant Corye Len Justice of the second-degree felony offense of possession of a controlled substance with intent to deliver, oxycodone weighing one gram or more but less than four grams, see Tex. Health & Safety Code § 481.112(c), and the third-degree felony offense of unlawful possession of a firearm by a felon, see Tex. Penal Code § 46.04(a). On appeal, appellant challenges the trial court's denial of his motion to suppress evidence and his requests for jury instructions on spoliation and, pursuant to article 38.23, to disregard illegally obtained evidence. See Tex. Code Crim. Proc. art. 38.23(a). For the following reasons, we affirm the judgments of conviction.

BACKGROUND

Around 11:00 p.m. on May 23, 2016, a police officer pulled appellant over for speeding while driving his Chevrolet Tahoe on Interstate 35. The officer "paced" the Tahoe and "determined that the vehicle was traveling at approximately 77 miles an hour" in a posted speed limit zone of 70 miles an hour. Appellant was the only occupant in the vehicle and admitted to the officer that he was speeding. The officer smelled the odor of "[b]urning marijuana" coming from the Tahoe and "observed what appeared to be a marijuana roach on the front passenger seat."¹

Complying with the officer's instruction, appellant stepped out of his vehicle. The officer handcuffed him and, while the officer was in "the process of doing that," appellant told the officer that he had been "smoking a little weed" and "was trying to get down to San Antonio." The officer found "[a] large wad of cash in all denominations in [appellant's] front pocket." After the officer detained appellant in the back seat of the officer's patrol car, the officer searched the Tahoe. In addition to the marijuana roach on the front passenger seat, the officer found an "ashtray full of . . . marijuana roaches," "an unsmoked marijuana blunt" in the "headliner,"² a digital scale, and two cell phones. The officer "picked up the cup holder" of the Tahoe's console. It "was loose and it just came right out" exposing a space beneath the console. In that space, the officer found a handgun, a plastic bag containing a variety of pills, and "a glass jar containing a plastic bag full of green plant substance," which the officer identified as marijuana.

Based on the items that he found in the Tahoe, the officer arrested appellant. As part of his procedure or process, the officer photographed the items that he found and where hefound them in the Tahoe and submitted the items into evidence. Because "there was marijuana found in multiple places, like fresh marijuana," "all of that went into one bag and was submitted into evidence." "[B]ecause there were so many of them, [the blunts/roaches] were destroyed/discarded at the police department." Pills that were found in the Tahoe contained oxycodone. It was later found that Appellant was a convicted felon who had been released from confinement on April 10, 2015. Appellant subsequently was indicted for one count of possession of a controlled substance with intent to deliver, oxycodone weighing one gram or more but less than four grams, and one count of unlawful possession of a firearm by a felon.

The State's case against appellant proceeded to a jury trial in March 2019. The witnesses included the police officer who initiated the traffic stop, an investigator who testified that appellant was a felon who had been released from confinement within the past five years, another officer who testified about recorded phone calls appellant made from jail after his arrest, and a forensic scientist who testified that, based on her testing, she identified the controlled substance of oxycodone weighing 2.700 plus or minus .004 grams among the items found in the Tahoe. The exhibits included photographs of the items that the officer found in the Tahoe, including the gun and plastic bag of pills found beneath the console, two recordings of appellant's phone calls from jail, and the patrol car's dash-cam video recording of the traffic stop. In one of the phone calls, appellant is heard saying that he "stashed everything" in the "stash" place before being pulled over for speeding.

In his testimony, the officer recounted the traffic stop and "probable cause search" of the Tahoe, explaining to the jury that "in this situation, the odor and presence here of marijuana allows for officers to search a vehicle . . . because the probability that marijuana is there, which is an illegal substance, is very likely." The officer stated in his report that "[b]asedon [his] training and experience [he] believed the green plant substance located inside the vehicle was marijuana," and he testified that he knew what marijuana was based on his "training and experience" and that "[the substance] was very obviously marijuana." He also testified "people use the word 'weed' when they're referring to marijuana," appellant "told [the officer] that he was smoking a little weed," and that "[t]he odor of marijuana in that vehicle was so overwhelming" and "coming from throughout the vehicle." He further testified that the odor of marijuana was coming from:

The partially smoked blunt loaded with a green plant substance on top of the front passenger seat. The digital scale with marijuana residue throughout directly below the radio—radio compartment. The portable, black-in-color ashtray with numerous blunts containing burnt marijuana. The unsmoked blunt containing a green plant substance inside an unsealed wrapper above the—in the headliner above the driver's seat. The glass jar containing a plastic bag full of a green plant substance inside of a purple Crown Royal bag below the cup holder in the center console. The plastic bag containing a green plant substance inside the purple Crown Royal bag below the cup holder.

With respect to his search of the space beneath the console, the officer testified:

I picked up the cup holder of the console. That is a common place for people to—on those types of vehicles to hide stuff. And after picking it up I noticed that—they don't generally come loose, but on the Chevy—if anyone is familiar with the Chevy, those older models, that's easily—it does easily come out if you pull hard enough. In this situation it was loose and it just came right out. So I picked it up and determined that there was multiple items stored in that void.

He further testified that the items in that space appeared to have been intentionally placed and secreted there.

During trial, the court took under advisement appellant's motion to suppress evidence. Appellant sought to suppress evidence that the officer found in the Tahoe, including the gun and the oxycodone that were found in the space beneath the console, arguing that theofficer's warrantless search of the vehicle was without probable cause and that "[t]he State failed to preserve material, exculpatory evidence that is critical to [appellant]'s defense to the illegal search and seizure of evidence obtained during such illegal search, in violation of [his] Due process rights." Consistent with his common practice or procedure, the officer testified that he destroyed or discarded the blunts that he found, including the one that he found in the headliner, and that he put all the fresh marijuana in one bag "as far as like submitting those for weight." He explained that placing the marijuana found in multiple places in one bag was the proper procedure "when it's quite evident" that "the item is less than two ounces" and that "it does not change the charge when it's below two ounces; it's all a Class B misdemeanor, so it doesn't matter." He "weighed [the marijuana]" and "[i]t was .31 ounces."

In addition to seeking to suppress evidence that the officer found in the Tahoe, appellant requested a jury instruction regarding spoliation of the evidence and argued that, "if there was spoliation" "with malicious intent," an article 38.23 instruction to disregard illegally obtained evidence was also necessary. See Tex. Code Crim. Proc. art. 38.23(a) (requiring jury instruction when legal evidence raises issue that evidence was obtained in violation of Constitution or statutes). Appellant's counsel conceded that if the trial court did not include the requested spoliation instruction in the jury charge, "then the 38.23 [instruction] was not necessary," as this alleged spoliation was the sole basis for this instruction. Appellant's proposed spoliation instruction was as follows:

The State has a duty to gather, preserve and produce at trial evidence which may possess exculpatory nature. Such evidence must be of a nature that the Defendant would be unable to obtain comparable evidence through reasonably available means. The State has no duty to gather or indefinitely preserve evidence considered by a qualified person to have no exculpatory value so that as a yet unknown defendant may later examine the evidence. If, after considering all ofthe proof, you find that the State failed to gather or preserve evidence, the content or quality of which are in issue, and the production of which would more probably than not be a benefit to the Defendant, you may infer that the absent evidence would be favorable to the Defendant. If you so find that [the officer] had a duty to retain the item of evidence alleged to be that of a marijuana blunt allegedly to have been discovered in the headliner of [appellant]'s vehicle, and that [the officer] subsequently destroyed this evidence, you may consider that -- that this evidence would have been favorable to [appellant] on the issue of reasonableness of the scope of the search conducted by [the officer].

At the conclusion of the charge conference, the court deni...