                                 NO. 12-13-00110-CR

                        IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS

RICHARD JAY CRAIN,                               §          APPEAL FROM THE 420TH
APPELLANT

V.                                               §          JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §         NACOGDOCHES COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Richard Jay Crain appeals his conviction for possession of a controlled substance, for which
he was sentenced to imprisonment for ten years. In one issue, Appellant argues that the evidence is
legally insufficient to support a finding that the evidence was lawfully seized. We affirm.


                                           BACKGROUND
       While transporting a DWI suspect, Texas State Trooper Jay Stone observed Appellant’s
vehicle swerving and stopped him on suspicion of driving while intoxicated. For safety reasons,
Stone radioed for help with the stop, and Nacogdoches Police Officer Nick Stewart arrived to
investigate. During the investigation, Stewart located a bag of marijuana in the car. He arrested
Appellant, searched him, and found several bags of cocaine.
       Appellant was charged with the offense of possession of a controlled substance. At trial,
Officer Stewart testified that he observed Appellant removing items from his pocket and placing them
in the vehicle. He then observed the marijuana in plain view through the open door of the vehicle
and arrested Appellant. A passenger in the vehicle testified that after Appellant placed the items in
the vehicle, he closed the door. The officer then handcuffed Appellant, searched the vehicle, and
said that he found marijuana. The passenger further testified that the vehicle’s dome light was not
working and that the back windows were tinted.
         At the charge conference, defense counsel asked for and received an instruction based on
article 38.23 of the Texas Code of Criminal Procedure. The instruction required the jury to disregard
the evidence obtained as a result of Appellant’s arrest if they found that the marijuana was not
discovered in plain view. Appellant was subsequently found guilty of the offense of possession of a
controlled substance. This appeal followed.


              SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE JURY’S IMPLIED FINDING
         In his sole issue, Appellant contends that the evidence in this case is legally insufficient to
prove that the officer found the marijuana in plain view.
         When a contested fact issue regarding the legality of the state’s procurement of the primary
evidence of guilt is submitted to the jury, a guilty verdict indicates an implied finding that the
procurement of the evidence was lawful. See Pierce v. State, 32 S.W.3d 247, 249, 253 (Tex. Crim.
App. 2000). However, the legality of the procurement of evidence is not an element of the offense
but rather relates to the admissibility of the evidence. See Malik v. State, 953 S.W.2d 234, 240 (Tex.
Crim. App. 1997); Caddell v. State, 123 S.W.3d 722, 726 (Tex. App.–Houston [14th Dist.] 2003, pet.
ref’d). Therefore, a legal sufficiency review is not an appropriate vehicle to review a jury’s implied
finding under article 38.23. Johnson v. State, 95 S.W.3d 568, 572 (Tex. App.–Houston [1st Dist.]
2002, pet. ref’d); see also Holmes v. State, 248 S.W.3d 194, 200 (Tex. Crim. App. 2008) (noting that
such a finding is unreviewable).
         In this case, as authorized by the article 38.23 instruction, the jury made an implied finding
that the marijuana was in the plain view of the officer. But the evidence supporting that finding is
not subject to a legal sufficiency review. Johnson, 95 S.W.3d at 572. Accordingly, we overrule
Appellant’s sole issue.


                                                     DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
                                                                    BRIAN HOYLE
                                                                       Justice
Opinion delivered November 26, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.



                                                (DO NOT PUBLISH)




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                                       COURT OF APPEALS
                  TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                              JUDGMENT


                                        NOVEMBER 26, 2013


                                         NO. 12-13-00110-CR


                                      RICHARD JAY CRAIN,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                            Appeal from the 420th Judicial District Court
                       of Nacogdoches County, Texas. (Tr.Ct.No. F1118430)


                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                       Brian Hoyle, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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