                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-09-00344-CR


ANTHONY GRIFFITH                                                   APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE


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         FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

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                       MEMORANDUM OPINION1
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                                  I. Introduction

     In four points, Appellant Anthony Brent Griffith appeals his conviction for

possession of a controlled substance (methamphetamine), one gram or more but

less than four grams. See Tex. Health & Safety Code Ann. § 481.115(c) (Vernon

2009). We affirm.



     1
      See Tex. R. App. P. 47.4.
                       II. Factual and Procedural History

      On January 23, 2008, around 7:30 p.m., Gainesville Police Officer James

Birdsell was watching a ―drug house‖ at 1505 North Culberson.               He saw

someone leave the house and get into the vehicle parked in the front yard. He

followed the vehicle as it traveled south on North Culberson, turned left on Medal

of Honor Boulevard, and then turned right on South Weaver Street. The vehicle

properly signaled the left-hand turn onto Medal of Honor Boulevard but not the

right-hand turn onto South Weaver Street. That is, the driver of the vehicle failed

to signal the turn prior to 100 feet of the intersection, although the vehicle did

signal as it made the turn. On cross-examination, Officer Birdsell testified that he

could have seen a hand signal if the driver had made one because there were

street lights in the area.   He stated that he followed the vehicle to develop

probable cause for a possible traffic stop and that failing to signal a turn within

100 feet was a violation of law.2

      Officer Birdsell activated his vehicle’s emergency lights and made a traffic

stop. He asked the three people inside the vehicle for identification and then

returned to his vehicle to run their names and birthdates. Griffith was the front


      2
       The trial court took judicial notice of section 545.104 of the transportation
code, which states, ―An operator intending to turn a vehicle right or left shall
signal continuously for not less than the last 100 feet of movement of the vehicle
before the turn.‖ Tex. Transp. Code Ann. § 545.104(b) (Vernon 2010). The trial
court also took judicial notice of section 545.106(a), which states that turn signals
may be made by using hand and arm or by using lights. Id. § 545.106(a)
(Vernon 2010).


                                         2
seat passenger. Officer Birdsell learned that Griffith had outstanding warrants for

his arrest through the justice of the peace court and contacted the constable,

who confirmed Griffith’s warrants.      When Griffith exited the vehicle, Officer

Birdsell placed him in handcuffs and then searched him. Officer Birdsell located

a clear plastic bag with a white powdery substance in Griffith’s front right pocket.

      Texas Department of Public Safety (DPS) forensic chemist Jennifer

Rumppee testified that she analyzed the contents of the plastic bag and that she

concluded that it contained methamphetamine. The substance’s net weight was

2.38 grams.

      Griffith pleaded not guilty to possession of a controlled substance and not

true to the enhancement paragraph, which alleged that he had two prior felony

convictions for robbery and possession of a controlled substance. The jury found

Griffith guilty and the enhancement allegations true and assessed punishment at

life imprisonment. The trial court sentenced him accordingly, and this appeal

followed.

                         III. Sufficiency of the Evidence

      In his third point, Griffith complains that the evidence is insufficient to

support the jury’s guilty verdict, contending that the indictment did not allege that

the ―more than one but less than four grams‖ of methamphetamine included

―adulterants and dilutants‖ and that the State’s expert testified that no quantitative

analysis had been performed on the drug sample, so she could not state the




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amount of pure methamphetamine, and admitted that it could have contained

less than one gram of methamphetamine.

      ―Controlled substance‖ means ―a substance, including a drug, an

adulterant, and a dilutant . . . . The term includes the aggregate weight of any

mixture, solution, or other substance containing a controlled substance.‖ Tex.

Health & Safety Code Ann. § 481.002(5) (Vernon 2009) (emphasis added).

―Adulterant or dilutant‖ means ―any material that increases the bulk or quantity of

a controlled substance, regardless of its effect on the chemical activity of the

controlled substance.‖ Id. § 481.002(48). ―[T]he State is no longer required to

determine the amount of controlled substance and the amount of adulterant and

dilutant that constitute the mixture.‖ Melton v. State, 120 S.W.3d 339, 344 (Tex.

Crim. App. 2003). The State has to prove only that the aggregate weight of the

controlled substance mixture, including adulterants and dilutants, equals the

alleged minimum weight. Id.

      Here, Officer Birdsell testified that he found a clear plastic bag with a white

powdery substance in Griffith’s front right pocket, and Rumppee testified that she

analyzed the contents of the plastic bag, that it contained methamphetamine, and

that the substance’s net weight was 2.38 grams. Therefore, the evidence is

sufficient to support the jury’s verdict convicting Griffith of possession of a

controlled substance (methamphetamine), one gram or more but less than four

grams. See Tex. Health & Safety Code Ann. § 481.115(c); Melton, 120 S.W.3d

at 344; see also Zone v. State, 118 S.W.3d 776, 777 (Tex. Crim. App. 2003)


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(holding evidence sufficient when chemist tested random sample of five of twelve

crack rocks and testified that the total weight of the rocks was 1.3 grams). We

overrule Griffith’s third point.

                                   IV. Suppression

       In his second point, Griffith argues that the trial court violated his federal

and state constitutional rights against illegal searches and seizures by overruling

his objections and denying his motion to suppress. Griffith contends that the

driver of the vehicle that was stopped ―did nothing to warrant the stop other than

fail to signal intent to turn.‖ Specifically, he complains that the officer followed the

vehicle until the driver ―finally made a traffic violation. There were insufficient

factors [to] justify the initial seizure of the driver and Appellant and therefore the

arrest of Appellant violated the Fourth Amendment and Article 38.23 of the Texas

Code of Criminal Procedure.‖

       Probable cause for a warrantless arrest requires that the officer have a

reasonable belief that, based on facts and circumstances within the officer’s

personal knowledge, or of which the officer has reasonably trustworthy

information, an offense has been committed. Torres v. State, 182 S.W.3d 899,

902 (Tex. Crim. App. 2005).         Probable cause must be based on specific,

articulable facts rather than the officer’s mere opinion. Id.; Ford v. State, 158

S.W.3d 488, 493 (Tex. Crim. App. 2005).               We use the ―totality of the

circumstances‖ test to determine whether probable cause existed for a

warrantless arrest. Torres, 182 S.W.3d at 902. An officer has probable cause to


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stop a driver if he observes the driver commit a traffic offense. See State v.

Gray, 158 S.W.3d 465, 469–70 (Tex. Crim. App. 2005); State v. Ballman, 157

S.W.3d 65, 70 (Tex. App.—Fort Worth 2004, pet. ref’d).

      Officer Birdsell testified that he saw the driver of the vehicle fail to signal a

turn prior to 100 feet of the intersection, a traffic offense. See Tex. Transp. Code

Ann. § 545.104(b). Therefore, Officer Birdsell had probable cause to stop the

vehicle. See Gray, 158 S.W.3d at 469–70; Ballman, 157 S.W.3d at 70. We

overrule Griffith’s second point.

                           V. Article 38.23 Instruction

      In his fourth point, Griffith contends that the trial court erred by denying his

requested article 38.23 instruction, which would have allowed the jury to

determine whether his stop and detention were reasonable under the

circumstances.

      A defendant’s right to the submission of a jury instruction under article

38.23 is limited to disputed issues of fact that are material to his claim of a

constitutional or statutory violation that would render evidence inadmissible.

Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007); see also

Holmes v. State, 248 S.W.3d 194, 199 (Tex. Crim. App. 2008) (―There is, of

course, nothing to instruct the jury about if the suppression question is one of law

only, and there is nothing to instruct the jury about unless there is affirmative

evidence that raises a contested fact issue.‖). To raise a disputed fact issue

warranting an article 38.23(a) jury instruction, there must be some affirmative


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evidence that puts the existence of that fact into question. Madden, 242 S.W.3d

at 513. ―The disputed fact must be an essential one in deciding the lawfulness of

the challenged conduct.‖ Id. at 511.

        Officer Birdsell presented the only evidence at trial regarding the facts

surrounding the traffic stop: He stated that he saw the driver fail to signal a turn

prior to 100 feet of the intersection and that he did not see the driver make a

hand signal. No affirmative evidence puts these facts into question. See id.

Therefore Griffith was not entitled to an article 38.23 instruction. We overrule

Griffith’s fourth point.

                       VI. Ineffective Assistance of Counsel

        In his first point, Griffith complains that he received ineffective assistance

of counsel at trial. He argues that his trial counsel: (1) failed to properly present

a motion for continuance when Griffith was not ready for trial; (2) failed to

properly relay and explain a potential plea bargain; (3) failed to present possible

witnesses on his behalf and medical testimony that would have mitigated

Griffith’s involvement in the offense by showing that he was experiencing

disabling migraine headaches; (4) failed to properly urge Griffith’s motion to

suppress; and (5) refused to allow Griffith to testify during the punishment phase

of trial.

        To establish ineffective assistance of counsel, appellant must show by a

preponderance of the evidence that his counsel=s representation fell below the

standard of prevailing professional norms and that there is a reasonable

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probability that, but for counsel=s deficiency, the result of the trial would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);

Mallett v. State, 65 S.W.3d 59, 62B63 (Tex. Crim. App. 2001); Thompson v.

State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988

S.W.2d 770, 770 (Tex. Crim. App. 1999).

      The State points out that Griffith has directed this court to no evidence in

the record to support his allegations. Rather, Griffith directs us to the affidavit

that he attached to his motion for new trial. In his affidavit, Griffith alleges the

following:

      [M]y attorney failed to perform the following during my trial: he failed
      to properly present a Motion for Continuance; he failed to properly
      relay and explain to me a potential plea bargain; he failed to present
      a possible witness for my behalf; he failed to present medical
      testimony that would have mitigated my involvement in this case; he
      failed to properly present and urge a Motion to Suppress, and he
      failed to allow me to testify during the punishment phase of my trial.

The trial court denied Griffith’s motion for new trial.

      If a party does not refer the appellate court to the pages in the record

where the error allegedly occurred, the appellate court may properly overrule the

point as inadequately briefed. Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim.

App.) (stating that the court Ahas no obligation to construct and compose

appellant=s issues, facts, and arguments >with appropriate citations to authorities

and to the record=@), cert. denied, 129 S. Ct. 625 (2008). Furthermore, the record




                                           8
must affirmatively demonstrate the alleged ineffectiveness. Salinas, 163 S.W.3d

at 740 (quoting Mallett, 65 S.W.3d at 63).

      With regard to Griffith’s complaint about counsel’s failure to properly

present a motion for continuance when Griffith was not ready for trial, he does

not direct us to which of counsel’s motions for continuance forms the basis for his

complaint.3 Furthermore, he directs us to nothing, and nothing in the record

describes, any potential plea bargain, who the ―possible witnesses‖ are and what

they would have testified on Griffith’s behalf, or how such witnesses’ testimonies

would have mitigated his possession of methamphetamine.4 And nothing in the

record supports Griffith’s allegation that his trial counsel refused to allow him to

testify during the punishment phase. We overrule these portions of Griffith’s first

point as inadequately briefed. See Busby, 253 S.W.3d at 673.

      Griffith’s trial counsel filed a motion to suppress ―fruits of illegal detention‖

on January 29, 2009, and raised his Fourth Amendment and article 38.23

      3
        Counsel filed a sworn motion for continuance on January 29, 2009,
requesting that the trial date be reset from February 2, 2009, because ―The
Defendant is suffering from severe migraine headaches and other serious
physical problems that need immediate care and [that] prevent him from being
able to assist Counsel in his defense.‖ And counsel filed a motion for
continuance on August 20, 2009, seeking to reset the trial date from August 24,
2009, because he had been unable to locate ―an important defense witness who
was present at the time of arrest, the driver of the vehicle in which [Griffith] was
riding.‖ Counsel also filed an agreed motion for continuance on November 7,
2008, which the trial court granted.
      4
       We note that during punishment, his sister described Griffith’s past
physical problems and migraine headaches, and his medical records were
admitted as a defense exhibit.


                                          9
arguments at trial, and the trial court considered these arguments before

overruling the objections and denying Griffith’s request for an article 38.23

instruction in the jury charge. Based on the record, and our resolution of Griffith’s

second point, we conclude that the record does not affirmatively show

ineffectiveness. See Salinas, 163 S.W.3d at 740. We overrule the remainder of

Griffith’s first point.

                                  VII. Conclusion

       Having overruled all of Griffith’s points, we affirm the trial court’s judgment.



                                                      PER CURIAM

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 10, 2011




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