                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-279-CR


TERRY ADAMS                                                       APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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           FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Terry Adams appeals his conviction by a jury for possession of

a controlled substance. He was indicted and convicted as a habitual offender

following past convictions of two felony offenses. He asserts that the trial

court erred by sustaining an objection to his closing argument and that the

evidence is factually insufficient to support the verdict. We find no error and




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          … See Tex. R. App. P. 47.4.
that the evidence sufficiently supports the verdict and affirm the trial court’s

judgment.

      On the night of March 4, 2008, Fort Worth police officers Carlos

Cespedes and Scott Christensen saw a car, occupied by two men, parked near

a known narcotics location. As the car pulled away from the curb, the driver

of the vehicle failed to use his turn signal or to wear his seatbelt. When the

officers saw the two traffic violations, they turned on the police car’s overhead

emergency lights indicating that the car should pull over. However, the driver

of the car refused to immediately pull the car over, and the officers followed the

car until it stopped in a little over one block. The officers also turned their

spotlights on the car.

      While the officers were following the car, they saw the passenger in the

car toss a gray cloth bag out of his window and into the street. The officers

could see inside of the car and saw the passenger’s hand come out of the

window.

      Cespedes, the officer driving the police car, let Christensen out of the car

in order to pick up the gray cloth bag because the officers did not know when

or if the car they were following would stop. Christensen quickly found the

gray bag that had been thrown out of the window. The bag contained 1.07

grams of crack cocaine. The officers arrested the passenger, Appellant.

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         Appellant’s first issue concerns whether the trial court erred in sustaining

the State’s objection to the defense’s final argument on the merits of the case.

It is helpful to review the sequence of the trial proceedings concerning this

claim.     The argument concerned whether Kenneth Coval, the driver of the

automobile in which Appellant was riding at the time in question, 1) was

subpoenaed to testify, and 2) appeared for trial. The argument in this regard

proceeded as follows:

         [DEFENSE COUNSEL]:        . . . . And they’re going to sit there, and
                                  they’re going to say Brian subpoenaed
                                  him. I did. Why do you think he didn’t
                                  show up?

         [PROSECUTOR]: Objection, Your Honor. It’s outside the record.

         THE COURT:         Same instruction, ladies and gentlemen.

         [DEFENSE COUNSEL]: Think about that for a minute. There’s a
                            court order out there, and he’s not here.

         [PROSECUTOR]: Your Honor, State would object. That’s outside
                       the record. Counsel never admitted any kind of
                       court order or even asked the Judge to take
                       judicial notice of that.

         [DEFENSE COUNSEL]: I put on the record, Judge, that he was
                            under subpoena.

         THE COURT:         You will be guided by the testimony as you
                            remember it. What the lawyers say is not
                            evidence.




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      [PROSECUTOR]: The State’s objection is that Counsel merely
                    commented on the record and failed to use
                    evidence on that point.

      THE COURT:         I’ll sustain that objection.

      Neither side suggests that the court was requested to or actually did take

judicial notice. Appellant argues that the court “effectively took judicial notice”

that Coval was subpoenaed and failed to appear. Of course, the court may

take judicial notice whether requested to or not. Tex. R. Evid. 201(c). And, it

shall take judicial notice if requested by a party and provided the necessary

information. Tex. R. Evid. 201(d).

      We decline to conclude that the court “effectively took judicial notice.”

First, the sustaining of the State’s objection to the argument based on a lack

of evidentiary support indicates that no judicial notice was taken because had

it been taken, the objection likely would have been overruled. Second, had the

court taken judicial notice, it would have been required to instruct the jury that

it could, but was not required to, accept as conclusive any fact judicially

noticed. Tex. R. Evid. 201(g). No such instruction was given.

      We resolve this issue against Appellant.

      We now turn to whether the evidence was factually sufficient to support

the verdict. When reviewing the factual sufficiency of the evidence to support

a conviction, we view all the evidence in a neutral light, favoring neither party.

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Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v.

State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the factfinder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the factfinder’s determination is

manifestly unjust. Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at

414–15, 417. The evidence shows that on the night of the offense, both

officers involved saw Appellant throw a cloth bag out the window. Then they

stopped and picked up the bag which contained what was proved to be crack

cocaine.

      Appellant maintains that Cespedes testified that it was “a possibility” that

when he saw Appellant’s hand move out the car window, he might have been

reaching for his seat belt. Christensen also acknowledges that possibility.

      Appellant also argues that Christensen did not rule out the fact that there

was a possibility that the entire episode was caught on video from the police

vehicle. He did testify, however, that had the incident been videotaped, the

tape would have been mentioned in the offense report and entered into

evidence.




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     Each of the officers gave clear and direct testimony about what they saw.

Other than possibilities, there is no significant evidence that supports

Appellant’s complaint on appeal.

     We conclude that the conviction is supported by factually sufficient

evidence and that the jury’s determination is not clearly wrong or manifestly

unjust. We resolve this issue against Appellant.

     Finding no error, we affirm the trial court’s judgment.




                                               CHARLES BLEIL
                                               JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER, J.; and CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).

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

DELIVERED: July 29, 2010




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