Robert Holleman v. The State of Texas--Appeal from 364th District Court of Lubbock County

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State: Texas

Court: Texas Northern District Court

Docket No: 07-05-00136-CR

Case Date: 11/28/2006

Plaintiff: Acequia Produce Sales, Inc.

Defendant: Hapco Farms, Inc.--Appeal from 139th District Court of Hidalgo County

Preview:NO. 07-05-0136-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B NOVEMBER 28, 2006 ______________________________ ROBERT HOLLEMAN, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2002-400231; HONORABLE BRADLEY S. UNDERWOOD, JUDGE _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Following a plea of not guilty, appellant Robert Holleman was convicted by a jury of possession of cocaine in a drug-free zone with intent to deliver and sentenced to life imprisonment.1 Appellant was convicted after being linked to baggies of crack cocaine found during the execution of a search warrant at a Lubbock residence. By a single issue, appellant contends the evidence was factually insufficient to support the jury's finding that he possessed the cocaine. We affirm. Appellant pled true to three enhancement paragraphs alleging prior felony convictions for possession of controlled substances.
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On June 27, 2002, members of the South Plains Regional Narcotics Task Force, in conjunction with the Lubbock SWAT team, conducted a raid on a Lubbock residence believed to be associated with the trafficking of narcotics. Officer Scott Weems, a

member of the Lubbock SWAT team, testified that he observed several people standing in front of the residence when he arrived at the scene. While waiting to exit the SWAT team van, he observed one of the persons, described as a black male wearing a white tank top and black jean shorts with a large shiny buckle, toss several small objects out of his right hand. However, because he had other responsibilities during the initial moments of the raid, he was unable to investigate immediately. Once inside the residence, he informed a narcotics officer of what he had seen but the officer was unable to locate the objects.

After the residence was secured, Officer Weems returned to the area where he observed the person throw the objects and found two plastic baggies containing an offwhite substance near a fence on the east side of the residence. The substance in the baggies was later determined to be ten grams of crack cocaine. After locating the objects, Officer Weems identified appellant, who had been detained, as the person who had tossed the baggies. A pat-down search of appellant yielded $2,724 in cash and marihuana in his shorts pocket. As a result of the raid, twelve people were detained and two were arrested, including appellant, who was charged with possession of the cocaine.

At appellant's trial, in addition to Weems' testimony, the State introduced a video of the raid taken by members of the SWAT team. Although the video did not capture appellant tossing the baggies, it showed the baggies in the location where Weems said he found them and recorded appellant as he identified himself while sitting handcuffed in the 2

driveway. The video also recorded the individuals detained during the raid as each recited his name, birth date and address. Appellant stipulated that the substance in the baggies was cocaine and that the offense was committed in a drug-free zone within 1,000 feet of a school, but presented the testimony of a private investigator who concluded that, based on his measurements, it was "possible, but not probable" that appellant could have tossed the baggies to their location from where he was seen standing in the driveway. In addition, appellant's friend identified appellant's belt which she picked up from the Lubbock County jail and which did not have a large buckle. At the conclusion of the evidence, the jury found appellant guilty of the offense.

By his sole issue, appellant challenges the factual sufficiency of the evidence linking him to the cocaine found near the residence. When an appellant challenges the factual sufficiency of the evidence, we review all the evidence without the prism of "in the light most favorable to the prosecution" and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000). We must determine, after considering all the evidence in a neutral light, 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), overruled in part by Watson v. State, No. PD-469-05, 2006 WL 2956272, at *10 (Tex.Crim.App. Oct. 18, 2006). We cannot reverse a conviction and order a new trial unless we find some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson, 2006 WL 2956272, at *10. We cannot conclude that appellant's conviction is "clearly wrong" or "manifestly 3

unjust" simply because, based on the evidence presented, we disagree with the jury's verdict. Id.; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). Any opinion addressing factual sufficiency also must include a discussion of the most important and relevant evidence that appellant claims undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

To prove unlawful possession of a controlled substance, the State must prove that appellant (1) exercised actual care, custody, control, or management over the substance and (2) knew the substance he possessed was contraband. Tex. Health & Safety Code Ann.

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