
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




NO. 03-01-00088-CR


Christopher Hall, Appellant

v.


The State of Texas, Appellee






FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT

NO. A-00-0221-S, HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING





DISSENTING OPINION





	Appellant was convicted by a jury of the offense of possessing more than five pounds
but less than fifty pounds of marihuana.  See Tex. Health & Safety Code Ann. § 481.121 (West
Supp. 2002).  He appeals, complaining solely that he received ineffective assistance of counsel
below, pointing out specific instances which he argues reflect deficient legal representation, and
asking that we grant him a new trial.  Instead, the majority sua sponte reviews the legal sufficiency
of the evidence the jury found sufficient to convict appellant, finds the evidence to be legally
insufficient, reverses the conviction, and renders an acquittal, all on a point of error not raised by
appellant.  Because I disagree that we should consider the issue and further disagree that the evidence
is legally insufficient, I respectfully dissent.
	Without statistics to support the proposition, it bears little argument that a vast
majority of criminal appeals contain an attack on the sufficiency of the evidence--whether legal,
factual, or both--as well as a complaint about the effectiveness of trial counsel.  These are the most
common complaints on appeal; only legal sufficiency requires an acquittal.  See Compton v. State,
607 S.W.2d 246, 249 (Tex. Crim. App. 1979).  Appellant complained only of the ineffectiveness of
his trial counsel, a complaint which if sustained would entitle him to a new trial as he requested.  See
Strickland v. Washington, 466 U.S. 668, 687 (1984).
	The majority recognizes that appellant does not complain of the legal sufficiency of
the evidence; nevertheless, the majority takes it upon itself to exercise its "discretion" to assert the
complaint it believes appellant should have asserted.  It does so under a line of cases suggesting that
once the appellate court has jurisdiction over an appeal it has the discretion to consider unassigned
error.  Although I do not question that there are instances where, in the interest of justice, the court
should consider unassigned error, I believe those are special situations that require the court to
exercise special care.
	The majority does not cite to, and we are unable to find, a single case in which an
appellate court has considered the legal sufficiency of the evidence as unassigned error.  The cases
relied upon by the majority all address rare circumstances where, for example, the record reflects
some fundamental error depriving the accused of a fair trial, the trial court lacked jurisdiction, or the
indictment or judgment were void.  See Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990)
(acknowledging court of appeals's jurisdiction to address unassigned fundamental error but reversing
its decision because issue not preserved for appeal); Pierce v. State, 780 S.W.2d 277, 280 (Tex.
Crim. App. 1989) (affirming court of appeals's ruling in contempt proceeding that due to lack of
service trial court lacked in personam jurisdiction over appellant and sua sponte holding that order
was neither commitment nor warrant and therefore did not authorize appellant's arrest); Perry v.
State, 703 S.W.2d 668, 670 (Tex. Crim. App. 1986) (holding court of appeals "had both jurisdiction
and authority to review as unassigned error the issues whether there was suggestive pretrial
investigative identification and, if so, whether this tainted the in court identifications to such an
extent that it deprived the appellant of a fair and impartial trial") (emphasis added); Carter v. State,
656 S.W.2d 468, 469-70 (Tex. Crim. App. 1983) (affirming court of appeals's jurisdiction to set
aside void judgment and determine indictment fundamentally defective and nullity despite
appellant's failure to file brief); Frost v. State, 25 S.W.3d 395, 399 (Tex. App.--Austin 2000, no
pet.) (considering unassigned egregious fundamental error where jury charge inquired about
aggravating factor not charged in indictment and failed to submit indicted offense); Rodriguez v.
State, 939 S.W.2d 211, 219-20 (Tex. App.--Austin 1997, no writ) (reviewing as unassigned error
authority of trial court to defer adjudication of guilt after defendant's plea of not guilty and jury's
guilty verdict resulting in void judgment).  The record of the present case does not reflect any such
fundamental error or procedural infirmity denying appellant a fair trial.
	Under the majority's reasoning, we could rewrite every appellate brief where the
appellant fails to lodge the most common of complaints.  Had he wished to do so, appellant could
have challenged the legal sufficiency of the evidence presented against him.  He did not.  In light of
the complete absence of precedent for considering the legal sufficiency of the evidence as unassigned
error, we should not.
	Further, considering the evidence in the light most favorable to the State, as we are
required to do, I cannot say that the evidence in the record is legally insufficient such that no rational
jury could have found appellant guilty of the offense charged beyond a reasonable doubt.  A legal
sufficiency review calls upon the reviewing court to view the relevant evidence in the light most
favorable to the verdict and determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319
(1979); Staley v. State, 887 S.W.2d 885, 888 (Tex. Crim. App. 1994).  Any inconsistencies in the
evidence should be resolved in favor of the verdict.  Moreno v. State, 755 S.W.2d 866, 867 (Tex.
Crim. App. 1988).  This standard of review is the same for both direct and circumstantial evidence. 
Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992).  
	The majority reviews the evidence and determines that it provides no affirmative link
between appellant and the contraband in his co-defendant's automobile.  I disagree.  
	During appellant's trial, several law enforcement officials testified to a common
scheme and mode of operation increasingly employed by criminals transporting quantities of
controlled substances on highways.  The plan requires two individuals acting in concert and employs
two separate vehicles.  The offenders store the contraband in the second car.  The two vehicles then
travel together in close proximity, with the first vehicle acting as a decoy.  In the event they
encounter law enforcement, the front vehicle begins driving in an erratic or illegal manner designed
to attract attention and cause the law officials to stop the first vehicle, thereby enabling the second
car containing the contraband to proceed past the officials unnoticed and avoid detection.
	On December 17, 1999, narcotics officers in Tom Green County received information
from a reliable informant that Christopher Hall and Simon Riley were currently engaged in a
criminal enterprise, and that on the day before the two men had rented two vehicles from Enterprise
Rent-A-Car in San Angelo for the purpose of going to El Paso and returning to San Angelo
employing this common mode of operation.  The informant stated that the two vehicles were rented
on December 16 and that the two men had traveled to El Paso the same day and would be returning
on the afternoon of December 17.  The informant gave very specific information as to the particular
automobiles each would be driving, the highway on which they would return to town, and which
driver and vehicle would be in the lead.  The officials investigated the information and discovered
that the two men had in fact rented the two vehicles from the same Enterprise office in San Angelo
on December 16.
	The afternoon of December 17 officials drove outside San Angelo about eight miles
to await the cars' return.  The evidence shows that the two vehicles were traveling toward San
Angelo about two or three minutes apart.  Appellant was in the lead vehicle as the informant had
stated.  When officers saw the first vehicle driven by appellant, they turned about and began
following appellant toward town.  He immediately began driving his vehicle in an erratic manner,
weaving in and out of traffic, and speeding at rates of sixty to ninety miles per hour, requiring some
other vehicles on the road to move to the shoulder to avoid him.  Within two or three minutes, other
officers spotted the second vehicle, followed it, and eventually, both were stopped.  Although
appellant's vehicle contained no contraband, it had the strong smell of burnt marihuana; Riley was
driving the second vehicle in which was hidden almost forty pounds of marihuana.
	Each vehicle contained copies of the papers showing their respective rental from the
Enterprise office in San Angelo; appellant's contained his receipt and Riley's vehicle contained his
receipt.  Appellant claimed that he had been to Las Cruces to visit a female friend, although the
number of miles traveled since the car had been rented was less than that trip would require but
matched the number of miles required for a trip to El Paso and back.  Appellant's vehicle contained
a receipt for payment to a motel in El Paso the night of December 16 for "Chris Hull" showing a
fictitious San Antonio address but a San Angelo zip code.  Appellant admitted to having smoked
marihuana earlier in the day but denied knowing that Riley had marihuana in his car.  In fact, he
denied any knowledge that Riley was traveling on the same highway at all and further denied
knowing Riley's last name.  The evidence, however, shows that the two men had been business
partners in an enterprise with a rented business location for at least seven months earlier in 1999, and
each vehicle contained their mutual and identical business cards reflecting both their first and last
names on each card.  One narcotics officer testified that he had been investigating appellant and
Riley since April and had their business premises under surveillance over a period of several months
during 1999.  The evidence also shows that appellant and Riley each had his own vehicle, yet they
each rented vehicles on this particular occasion.  Documents in the record at the punishment stage
show that during the last three months or so, appellant, an otherwise unemployed student, had rented
vehicles from the same Enterprise office at a cost of over $9000, including some large sums paid in
cash.
	Appellant was indicted for possession of the marihuana found in Riley's vehicle, on
the theory that the two men had acted in concert and that appellant knew of the contraband in Riley's
vehicle and exercised care, custody, and control over the contraband by his action in trying to protect
Riley from being stopped so that the contraband could remain undetected.  The only other
explanation the jury could believe from the evidence was that the two men unknowingly rented
vehicles the same day from the same office, both drove West, and both returned to San Angelo
within three minutes of one another the next day, all by some unexplained and remarkable set of
coincidental circumstances.  Appellant admitted smoking marihuana and his vehicle smelled of it;
he disavowed knowledge that Riley's vehicle contained marihuana; he denied knowing of Riley's
presence on the road and denied knowing his name, even though the two had been business partners
for most of the year.  Yet, for some unexplained reason, appellant suddenly began driving erratically
at high speeds, endangering himself and other innocent drivers on the road, as soon as the officers
began following him.
	Although these facts may not fit the classic pattern of affirmative links necessary to
prove possession of drugs not in one person's exclusive possession, I would hold the evidence
legally sufficient such that a rational jury could consider the circumstantial evidence and draw
reasonable inferences therefrom and thereby find appellant guilty of the offense of possession beyond
a reasonable doubt.  I therefore dissent. (1)


  
					Marilyn Aboussie, Chief Justice
Before Chief Justice Aboussie, Justices B. A. Smith and Puryear  
Filed:   July 26, 2002
Publish
1.        	From my review of the record, but for reasons different from the majority, I would grant
appellant a new trial based upon his complaint of ineffective assistance of counsel.

