                                   IN THE
                           TENTH COURT OF APPEALS

                                    No. 10-08-00119-CR

JUSTIN AMAR BELL,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                            From the 54th District Court
                             McLennan County, Texas
                            Trial Court No. 2007-2046-C2


                            MEMORANDUM OPINION


       A jury found Justin Bell guilty of possession of a controlled substance (under one

gram), and Bell was assessed a two-year prison sentence. Bell’s appellate counsel filed

an Anders brief presenting three potential issues that he determined are without merit.

See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although

informed of his right to do so, Bell did not file a pro se brief or response. The State did

not file a brief. We will affirm.

       In an Anders case, we must, “after a full examination of all the proceedings, []
decide whether the case is wholly frivolous.” Id. at 744, 87 S.Ct. at 1400; accord Stafford v.

State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991); see generally Villanueva v. State, 209

S.W.3d 239, 243-44 (Tex. App.—Waco 2006, no pet.). An appeal is “wholly frivolous” or

“without merit” when it “lacks any basis in law or fact.” McCoy v. Court of Appeals, 486

U.S. 429, 439 n.10, 108 S.Ct. 1895, 1902 n.10, 100 L.Ed.2d 440 (1988). Arguments are

frivolous if they “cannot conceivably persuade the court.” Id. at 426, 108 S.Ct. at 1901.

An appeal is not frivolous if based on “arguable grounds.” Stafford, 813 S.W.2d at 511.

         Appellate counsel first addresses whether the trial court abused its discretion in

denying Bell’s motion to suppress.

                 To suppress evidence on an alleged violation of Fourth
         Amendment rights, the defendant bears the initial burden of producing
         evidence that rebuts the presumption of proper police conduct. Ford v.
         State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). A defendant satisfies
         this burden by establishing that a search or seizure occurs without a
         warrant. Id. Once the defendant makes this showing, the burden shifts to
         the State, which must then establish that the search or seizure was
         conducted with a warrant or was reasonable. Id.

Haas v. State, 172 S.W.3d 42, 49 (Tex. App.—Waco 2005, pet. ref’d).

                A trial court’s denial of a motion to suppress is reviewed for abuse
         of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). . . .

               The trial court’s findings of fact are given “almost total deference,”
         and in the absence of explicit findings, the appellate court assumes the
         trial court made whatever appropriate implicit findings that are
         supported by the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.
         Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89-90 (Tex. Crim. App.
         1997). However, the application of the relevant law to the facts, including
         Fourth Amendment search and seizure law, is reviewed de novo.
         Carmouche, 10 S.W.3d at 327. Also, when the facts are undisputed and we
         are presented with a pure question of law, de novo review is proper. Oles,
         993 S.W.2d at 106. Thus, for example, when the issue to be determined on
         appeal is whether an officer had probable cause, “the trial judge is not in

Bell v. State                                                                              Page 2
         an appreciably better position than the reviewing court to make that
         determination.” Guzman, 955 S.W.2d at 87. Therefore, although due
         weight should be given to the inferences drawn by trial judges and law
         enforcement officers, determinations of matters such as reasonable
         suspicion and probable cause should be reviewed de novo on appeal. Id.
         (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134
         L.Ed.2d 911 (1996)).

Davis v. State, 74 S.W.3d 90, 94-95 (Tex. App.—Waco 2002, no pet.).

                A law enforcement officer may lawfully stop a motorist who
         commits a traffic violation. Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim.
         App. 1992). In general, the decision to stop an automobile is reasonable
         when an officer has probable cause to believe that a traffic violation has
         occurred. Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000); Wolf
         v. State, 137 S.W.3d 797, 801 (Tex. App.—Waco 2004, no pet.); see also
         Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d
         89 (1996).

Haas, 175 S.W.3d at 49-50.

         The evidence in the suppression hearing shows that a Waco police officer pulled

over a car in which Bell was a passenger at 3:10 a.m. in a high-crime area of Waco. The

officer testified that he pulled over the car because he could not read the license plate

because the license plate’s lightbulb was dangling on its wire and emitting its glare

outward so that the officer could not read the license plate from a fifty-foot distance.

Failure to have a light that illuminates the rear license plate and makes the plate clearly

legible at a distance of 50 feet from the rear is a traffic violation. See TEX. TRANSP. CODE

ANN. §§ 542.301(a), 547.322(f) (Vernon 1999).

         The officer gave admittedly inconsistent testimony about when he was able to

read and run the plate number and whether he drove up or walked up to it to initially

read it, but he did consistently maintain that, because of dangling bulb, the plate was


Bell v. State                                                                             Page 3
not legible from fifty feet. In a suppression hearing, the trial court is the sole trier of fact

and judge of the witnesses and the weight to be given their testimony, and may believe

or disbelieve all or any part of a witness’s testimony. Ross v. State, 32 S.W.3d 853, 855

(Tex. Crim. App. 2000). No findings of fact were requested or made, and in denying the

motion to suppress, the trial court impliedly believed the officer’s testimony about the

legibility of the license plate. We must view the evidence in the light most favorable to

the trial court’s ruling. Kelly v. State, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).

Accordingly, we agree with counsel that the trial court’s denial of the motion to

suppress at the suppression hearing or when it was reurged at trial is not an issue that

might arguably support an appeal.

         Next, appellate counsel addresses whether the evidence is legally and factually

sufficient to support the conviction and concludes that it is sufficient. When reviewing

a challenge to the legal sufficiency of the evidence to establish the elements of a penal

offense, we must determine whether, after viewing all the evidence in the light most

favorable to the verdict, any rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,

318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Adelman v. State, 828 S.W.2d 418, 422

(Tex. Crim. App. 1992). Any inconsistencies in the evidence are resolved in favor of the

verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

         In a factual sufficiency review, we ask whether a neutral review of all the

evidence, though legally sufficient, demonstrates either that the proof of guilt is so

weak or that conflicting evidence is so strong as to render the factfinder’s verdict clearly

Bell v. State                                                                             Page 4
wrong and manifestly unjust. Watson v. State, 204 S.W.3d. 404, 414-15 (Tex. Crim. App.

2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). “The court reviews the

evidence weighed by the jury that tends to prove the existence of the elemental fact in

dispute and compares it with the evidence that tends to disprove that fact.” Johnson, 23

S.W.3d at 7.

         The State was required to prove beyond a reasonable doubt that Bell knowingly

or intentionally possessed a controlled substance (here, crack cocaine) in an amount of

less than one gram. See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (Vernon 2003). The

Court of Criminal Appeals has provided the following explanation for the “so-called

‘affirmative links’ rule”:

         [I]n a possession of a controlled substance prosecution, “the State must
         prove that: (1) the accused exercised control, management, or care over
         the substance; and (2) the accused knew the matter possessed was
         contraband.”        Regardless of whether the evidence is direct or
         circumstantial, it must establish that the defendant’s connection with the
         drug was more than fortuitous. This is the so-called “affirmative links”
         rule which protects the innocent bystander—a relative, friend, or even
         stranger to the actual possessor—from conviction merely because of his
         fortuitous proximity to someone else’s drugs. Mere presence at the
         location where drugs are found is thus insufficient, by itself, to establish
         actual care, custody, or control of those drugs. However, presence or
         proximity, when combined with other evidence, either direct or
         circumstantial (e.g., “links”), may well be sufficient to establish that
         element beyond a reasonable doubt. It is, as the court of appeals correctly
         noted, not the number of links that is dispositive, but rather the logical
         force of all of the evidence, direct and circumstantial.

Evans v. State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006) (quoting Evans v. State, 185

S.W.3d 30, 34 (Tex. App.—San Antonio 2005)) (footnotes omitted). Thus, there must be

direct or circumstantial evidence establishing that Bell exercised control, management,


Bell v. State                                                                           Page 5
or care over the controlled substance and knew it was contraband. See id.

         The evidence showed that after the officer had pulled over the car, he discovered

that an arrest warrant had been issued for Bell. The officer handcuffed Bell and then

saw Bell reach into his pocket, pull out a small plastic bag, and drop it. Field-testing

and lab testing showed the substance in the bag to be cocaine. We agree with counsel

that sufficiency of the evidence is not an issue that might arguably support an appeal.1

         Bell’s counsel last addresses whether two testimonial references by the officer to

Bell’s prior hearing for revocation of community supervision (in which the officer

appears to have given testimony on the offense before us) caused reversible error. On

each occasion Bell’s trial counsel objected and asked the trial court to instruct the jury to

disregard the officer’s statement. The trial court gave the instruction to disregard both

times but denied the follow-up mistrial requests.

         [T]he question of whether a mistrial should have been granted involves
         most, if not all, of the same considerations that attend a harm analysis. A
         mistrial is the trial court’s remedy for improper conduct that is “so
         prejudicial that expenditure of further time and expense would be
         wasteful and futile.” In effect, the trial court conducts an appellate
         function: determining whether improper conduct is so harmful that the
         case must be redone. Of course, the harm analysis is conducted in light of
         the trial court’s curative instruction. Only in extreme circumstances,
         where the prejudice is incurable, will a mistrial be required.

Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); see also Archie v. State, 221

S.W.3d 695, 699-700 (Tex. Crim. App. 2007). Thus, the appropriate test for evaluating

whether the trial court abused its discretion in overruling a motion for mistrial is a



1Bell’s counsel also concludes that, if any error occurred during voir dire, no harm can be shown. We
agree.

Bell v. State                                                                                 Page 6
tailored version of the test originally set out in Mosley v. State, 983 S.W.2d 249, 259-60

(Tex. Crim. App. 1998). See Hawkins, 135 S.W.3d at 77. Those factors are: (1) the

prejudicial effect, (2) curative measures, and (3) the certainty of conviction absent the

misconduct. Id.; see Mosley, 983 S.W.2d at 259.

          In this case, the evidence of guilt was strong, and the two references to the

revocation hearing appear to have been inadvertently made and were not so prejudicial

that continuation of the trial would be a waste of time and expense and ultimately

futile.    Moreover, such references were curable by an instruction to the jury to

disregard. Accordingly, we agree with counsel that the trial court’s mistrial denials are

not an issue that might arguably support an appeal.

          We have also conducted an independent review of the record, and because we

find this appeal to be wholly frivolous, we affirm the judgment. Counsel must send

Bell a copy of our decision by certified mail, return receipt requested, at Bell’s last

known address. TEX. R. APP. P. 48.4. Counsel must also notify Bell of his right to file a

pro se petition for discretionary review. Id.; see also Ex parte Owens, 206 S.W.3d 670, 673-

74 (Tex. Crim. App. 2006); Villanueva, 209 S.W.3d at 249. We grant counsel’s motion to

withdraw, effective upon counsel’s compliance with the aforementioned notification

requirement as evidenced by “a letter [to this Court] certifying his compliance.” See

TEX. R. APP. P. 48.4.


                                                  REX D. DAVIS
                                                  Justice

Before Chief Justice Gray,

Bell v. State                                                                         Page 7
      Justice Reyna, and
      Justice Davis
      (Chief Justice Gray concurs in the judgment of the court to the extent it affirms
      the judgment of the trial court. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed December 9, 2009
Do not publish
[CR25]




Bell v. State                                                                    Page 8
