                                     NO. 07-11-0080-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL C

                                       MARCH 22, 2012

                           ______________________________


                      MARTIN PECINA HERNANDEZ, APPELLANT

                                               V.

                            THE STATE OF TEXAS, APPELLEE


                         _________________________________

      FROM THE CRIMINAL DISTRICT COURT NO. 6 OF DALLAS COUNTY;
    NO. F09-61549-X; HONORABLE DON METCALFE, JUDGE SITTING FOR THE
                    HONORABLE JEANINE HOWARD, JUDGE
                      _______________________________

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


                                 MEMORANDUM OPINION


      Appellant pled guilty in open court to the second degree felony offense of

possession of a controlled substance, cocaine, in an amount of four grams or more but

less than two hundred grams1 and was sentenced to sixteen and one-half years


1
See Tex. Health & Safety Code Ann. § 481.115(d) (West 2010).
confinement.2      Appellant asserts that (1) the trial court erred by not withdrawing

Appellant’s guilty plea when there was insufficient evidence of criminal conduct; (2)

there was legally insufficient evidence to find him guilty of criminal conduct; and (3) the

trial court erred by informing the jury during voir dire that he had pled guilty and the trial

court would later instruct the jury to find him guilty. By cross-point, the State asks that

we modify the judgment by striking “481.112 Health and Safety Code” from the

judgment and substituting “481.115(d) Health and Safety Code” as the “Statute for

Offense.” We modify the judgment and affirm the judgment as modified.


                                            BACKGROUND


        In January 2010, a grand jury returned an indictment against Appellant alleging

that, on or about November 21, 2009, Appellant unlawfully and knowingly possessed

with intent to deliver a controlled substance, to-wit: cocaine, in an amount of four grams

or more but less than two hundred grams, a first degree felony.3 The indictment also

contained an enhancement paragraph alleging that Appellant had a prior conviction for

the felony offense of manufacturing a controlled substance in June 2006.                        On the

State’s motion, the trial court subsequently amended the indictment and struck the

words “intent to deliver” and the enhancement paragraph, making the offense a second

degree felony.4




2
 Following Appellant's plea of guilty this proceeding became a "unitary trial" to determine the remaining
issue of punishment. See State v. Davis, 349 S.W.3d 535, 538 (Tex.Crim.App. 2011).
3
See Tex. Health & Safety Code Ann. § 481.112(d) (West 2010).
4
See Tex. Health & Safety Code Ann. § 481.115(d) (West 2010).


                                                   2
       After Appellant pled guilty in open court to the indictment as amended, the State

offered the testimony of Dallas City Police Officer David Crowley. Crowley testified that,

on November 1, 2009, he observed a car stopped at a traffic light at 6:00 a.m. When

the light changed to green, the car did not move. Officer Crowley pulled behind the car

and sounded his air horn. There was no response. When he approached the car, he

observed Appellant asleep with the front seat reclined. Officer Crowley rapped on the

window and Appellant awoke sleepily and groggily. He appeared disoriented and, when

Officer Crowley opened his car door, Appellant appeared intoxicated and smelled of

alcoholic beverage. After getting out of the car, Appellant had difficulty walking at a

steady balance. Officer Crowley placed Appellant under arrest for public intoxication

and impounded Appellant’s car.             Prior to the car being towed, Officer Crowley

performed an inventory search and discovered a plastic bag containing cocaine in the

front passenger seat map case within a couple of inches from where Appellant’s head

was located with the front driver’s seat reclined. The bag was in plain view, i.e., halfway

in and halfway out of the map case pocket.


       Written stipulations of evidence were admitted, without objection, wherein

Appellant stipulated that the plastic bag contained eighteen blue zip lock bags

containing 8.3 grams of 52 percent pure cocaine. Appellant also stipulated that, prior to

the incident, he had four prior felony convictions for drug-related offenses between 2000

and 2006.5


5
 The four prior drug-related felony convictions were for unlawful delivery of a controlled substance,
cocaine, in June 2006; unlawful possession with intent to deliver a controlled substance, cocaine, in
November 2004; unlawful possession with intent to deliver a controlled substance, cocaine, in February
2003; and unlawful possession of a controlled substance, cocaine, in March 2000.


                                                  3
        On cross-examination, Officer Crowley testified that, when he ran the car’s

registration, it did not come back to Appellant although the address where Appellant

was living matched the address on the car’s registration. Officer Crowley also testified

that he did not have the plastic bag tested for fingerprints and the cocaine was not

found in Appellant’s personal belongings. Appellant did not testify and called no further

witnesses.


        Thereafter, the jury convicted Appellant for possession of a controlled substance,

cocaine, in an amount of four grams but less than two hundred grams and sentenced

him to sixteen and one-half years confinement. This appeal followed.6


        SUFFICIENCY OF THE EVIDENCE7


        Appellant contends the State failed to provide sufficient proof of his guilt in

support of his plea because there was no evidence he owned the car or that his

fingerprints were on the plastic bag. We disagree.


        Where a defendant knowingly, intelligently, and voluntarily pleads guilty or nolo

contendere to a felony, the appellate standards of review for evidentiary sufficiency do

not apply. Ex parte Martin, 747 S.W.2d 789, 791 (Tex.Crim.App. 1988); O’Brien v.

State, 154 S.W.3d 908, 910 (Tex.App.—Dallas 2005, no pet.). Although the State must

introduce evidence into the record establishing the defendant’s guilt; see Tex. Code
6
 Originally appealed to the 5th Court of Appeals, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See Tex. Gov=t Code Ann. ' 73.001 (West
2005). We are unaware of any conflict between precedent of the 5th Court of Appeals and that of this
Court on any relevant issue. See Tex. R. App. P. 41.3.
7
 Logic dictates that we consider Appellant’s second point of error first. See Clark v. Jenkins, 248 S.W.3d
418, 427 (Tex.App.—Amarillo 2008, pet. denied), cert. denied, ___ U.S. ___. 103 S.Ct. 52, 175 L.Ed.2d
21 (2009).


                                                    4
Crim. Proc. Ann. art. 1.15 (West 2005), there is no requirement that the supporting

evidence prove the defendant’s guilt beyond a reasonable doubt. McGill v. State, 200

S.W.3d 325, 330 (Tex.App.—Dallas 2006, no pet.). Rather, the supporting evidence

must simply embrace each essential element of the offense charged. Stone v. State,

919 S.W.2d 424, 427 (Tex.Crim.App. 1996); McGill, 200 S.W.3d at 330.8


       A person commits the offense of possession of a controlled substance if he or

she knowingly or intentionally possesses it.              Tex. Health & Safety Code Ann. §

481.115(a) (West 2010). The State must prove the accused exercised actual care,

custody, control, and management over the contraband and that he knew the substance

he possessed was contraband. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.

1995). These elements may be established by circumstantial evidence. McGoldrick v.

State, 682 S.W.2d 573, 578 (Tex.Crim.App. 1985).                   When the accused is not in

exclusive possession or control of the place where the contraband is found, the State

must prove independent facts and circumstances linking him to the contraband—the

evidence must establish the accused’s connection with the contraband was more than

just fortuitous. Brown, 911 S.W.2d at 747.


       Here, Appellant was in exclusive possession of the automobile where the

cocaine was found. He was the driver and only occupant. He was also asleep in a car

stopped in a traffic lane in “park,” his seat was reclined and his head was only inches


8
 “A deficiency of one form of proof—say, a deficient written stipulation of evidence (as we have in this
case) or written judicial confession—may be compensated for by other competent evidence in the
record.” Menefee v. State, 287 S.W.3d 9, 14 (Tex.Crim.App. 2009); Dinnery v. State, 592 S.W.2d 343,
                                                                                                st
352 (Tex.Crim.App. 1980). See Parks v. State, 960 S.W.2d 234, 236-38 (Tex.App.—Houston [1 Dist.]
1998, pet. ref’d) (holding evidence sufficient to support plea where evidence other than stipulation
showed guilt).


                                                   5
away from a plastic bag containing cocaine that was halfway in and halfway out of the

passenger seat map case--in plain view.                Moreover, there was evidence entered,

without objection, that Appellant had four drug-related felony convictions prior to this

incident giving rise to an inference that he knew the substance in the plastic bag was

cocaine.     Accordingly, we find the supporting evidence embraced each essential

element of the offense charged. Appellant’s second point of error is overruled and his

first point of error is pretermitted.9


        VOIR DIRE


        Appellant next asserts the trial court erred by informing the jury during voir dire

that he had pled guilty and he would later instruct them to find Appellant guilty.


        When Appellant was arraigned on the amended indictment, the trial court

informed him without objection that “if [he] persist[ed] in [his] plea, [he would] instruct

the jury to find [him] guilty and to affix your punishment.” During voir dire, the trial court

informed the jury without objection that “before you came in here, the defendant entered

his plea of guilty to the indictment” and “[y]our’re not going to be submitted the

questions of is he guilty or not . . . . His plea of guilty admits that.”10 At the beginning of

his trial, Appellant pled guilty before the jury and, without objection, the trial court

instructed the jury “to find the Defendant guilty as charged in the indictment.”




9
 A court is not required to address issues that become moot because of the resolution of other issues.
State v. Plembeck, 182 S.W.3d 365, 367 n.10 (Tex.Crim.App. 2008) (citing Hull v. State, 67 S.W.3d 215,
217 n.3 (Tex.Crim.App. 2002)).
10
  Furthermore, at the conclusion of voir dire, the trial judge asked whether there was anything else the
lawyers wanted to cover and counsel for both parties answered: “No.”

                                                   6
         To preserve error on appeal, a party must make a timely, specific objection or

motion to the trial court that states the grounds for the ruling sought with sufficient

specificity and complies with the rules of evidence and procedure, and that the trial

court “ruled on the request, objection, or motion, either expressly or implicitly . . . .” See

Tex. R. App. P. 33.1(a).     See Gutierrez v. State, 36 S.W.3d 509, 511 (Tex.Crim.App.

2001).     Appellant did not do so, and we overrule his third point of error. See Dhillon v.

State, 1318 S.W.3d 583, 587-88 (Tex.App.—Houston 2004, no pet.).


         STATE’S CROSS-POINT


         Although the amended indictment reflects that Appellant was charged with

possession of a controlled substance rather than possession of a controlled substance

with intent to deliver, Appellant pled guilty to the amended indictment, the jury’s verdict

form indicates he was found guilty of possession of a controlled substance, and the trial

court’s judgment states he was convicted of possession of a controlled substance, the

judgment cites the “Statute for Offense” as Section 481.112 of the Texas Health and

Safety Code (possession with intent to deliver) rather than Section 481.115(d)

(possession).     Accordingly, we sustain the State’s cross-point and order that the

judgment be modified to reflect the correct statutory provision, Section 481.115(d), as

the “Statute for Offense.” See Tex. R. App. P. 43.2, 43.6.




                                              7
                                     CONCLUSION


      Having modified the trial court’s judgment to reflect the "Statute for Offense" as

“481.115(d) Health and Safety Code,” the judgment, as modified, is affirmed.




                                               Patrick A. Pirtle
                                                   Justice

Do not publish.




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