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Phillips v. State

Court of Appeals of Texas, First District

July 27, 2017


         On Appeal from the 180th District Court Harris County, Texas Trial Court Case No. 1448038

          Panel consists of Chief Justice Radack and Justices Keyes and Massengale.



         A jury convicted appellant, Joseph Jamal Phillips, of the third-degree felony offense of evading arrest with a motor vehicle and, after appellant pleaded true to the allegations in two enhancement paragraphs, assessed his punishment at fifty years' confinement.[1] In three issues, appellant contends that (1) the State failed to present sufficient evidence that he was driving the vehicle that evaded law enforcement; (2) the trial court erroneously admitted evidence that a bag of marijuana was found during the inventory search of the vehicle; and (3) the trial court erroneously admitted expert testimony about appellant's gang membership.

         We affirm.


         Humble Police Department Officer D. Meyers was on patrol during the early morning hours of November 10, 2014, when he received a call concerning a suspicious vehicle near the loading dock of the J.C. Penney department store at Deerbrook Mall around 5:30 a.m. Officer Meyers saw a vehicle fitting the description that he had been given leaving the mall parking lot, and he turned around to follow it. Officer Meyers was able to see into the vehicle. At first, it appeared to him that the only occupant was the driver, but he later learned that there was also a passenger sitting in the front passenger seat. It was still dark outside at the time Officer Meyers encountered this vehicle.

         Officer Meyers witnessed the driver make several traffic violations, and he turned on his emergency lights to conduct a traffic stop. The driver slowed down and eventually turned into the parking lot of a nearby bank. The driver stopped in the bank parking lot, but Officer Meyers could tell that the driver did not place the vehicle in park but instead kept his foot on the brake. Officer Meyers also saw the driver and the passenger make furtive gestures, and he decided to call for backup because he did not think the men would comply with commands.

         When another officer arrived at the bank, Officer Meyers commanded the men over his patrol car's PA system to put their hands on the ceiling of the car, and he also commanded the driver to turn off the vehicle. Officer Meyers stood outside next to the driver's door of his patrol car while he gave these commands, and he testified that he was standing roughly level with where his dash-camera was located in his patrol car. The trial court admitted a recording from the dashcam into evidence. Officer Meyers acknowledged that the dashcam did not produce a high-quality recording, but he also stated that his view of the passengers of the suspicious vehicle was better than that seen on the recording. Officer Meyers had the patrol car's emergency lights and its spotlight shining on the vehicle, and he could see the driver through the driver's rearview and side mirrors. Officer Meyers identified appellant in court as the person driving the vehicle in the bank parking lot.

         Appellant did not comply with Officer Meyers's commands, and his vehicle started rolling forward. Officer Meyers got back into his patrol car and started to follow the vehicle through the parking lot. Once the cars got out of the parking lot and onto the road, Officer Meyers turned on both the patrol car's emergency lights and siren. Appellant drove onto the entrance ramp to the northbound lanes of Highway 59, and Officer Meyers saw the passenger toss something out of the window and onto the ramp. Officer Meyers did not stop to see what the passenger had thrown out of the car, and this object was not recovered by police. Officer Meyers contacted other jurisdictions, including the Harris County Sheriff's Office and the Houston Police Department, for assistance in this pursuit. Appellant led Officer Meyers and several other patrol cars on a thirty-minute chase that traveled northbound on Highway 59, southbound on Highway 59, and through a parking lot, several major intersections, and several neighborhood streets before appellant crashed into another vehicle.

         The crash turned appellant's car around so that it faced the wrong way on the street, and the car came to a stop. Officer Meyers saw both the driver and the passenger get out of the car and start running. The driver, whom Officer Meyers again identified in court as appellant, ran through a nearby field and into a neighborhood, where he was caught by Houston Police Department Officer T. Rose, who had responded to Officer Meyers's call for assistance. Officer Rose arrived on the scene after the crash had already occurred, and he identified appellant in court as the person he had caught. Officer Meyers apprehended the passenger in a nearby ditch. On the dashcam video, which was admitted into evidence, Officer Meyers, after he apprehended the passenger, can be heard repeatedly asking if other officers caught the driver.

         After the officers had appellant and the passenger in custody, they performed an inventory search of the vehicle appellant had been driving. The officers recovered an Airsoft replica pistol and a plastic bag that contained marijuana from the passenger compartment of the vehicle. Appellant objected to the admission of the evidence of the bag of marijuana, arguing that it was an improper extraneous offense and that the State offered it solely for its prejudicial effect, but the trial court overruled his objection, stating, "I think that it is connected as a possible explanation for evading so I think it is admissible."

         The jury found appellant guilty of the offense of evading arrest. At the punishment phase, appellant pleaded true to the allegations in two enhancement paragraphs. The trial court also admitted evidence that appellant had five prior convictions.

         The State then announced its intention to call Houston Police Department Sergeant C. Ponder to testify as an expert concerning appellant's gang membership and tattoos. Outside of the presence of the jury, Sergeant Ponder testified that he began working with gang members and conducting gang investigations in 2000 when he joined the Fondren Divisional Tactical Unit. He testified that he has been a part of several units with the Houston Police Department dedicated to conducting gang investigations. He stated that he is a member of the Texas Gang Investigators Association, that he attends regular conferences, and that he acquires most of his knowledge about gangs from talking with actual gang members. He has testified as an expert on gangs on many occasions.

         Sergeant Ponder testified that he is familiar with the Bloods street gang as well as a local gang called "Dead End Alliance" affiliated with a particular neighborhood in Houston. He stated that his opinion that appellant was affiliated with gangs was based on appellant's numerous tattoos as well as the fact that appellant had been documented as a gang member in the Gang Tracker, the gang database of the Houston Police Department.[2] He stated that appellant had, on two occasions, self-admitted to an officer that he was a lieutenant in a subset of the Bloods. He further testified that, based on appellant's tattoos, appellant was a member of the Bloods, although he was not positive concerning the particular Houston-area subset of the Bloods with which appellant was affiliated.

         Appellant objected to Sergeant Ponder's testimony, arguing that Ponder was not qualified to testify as an expert and that his opinion on appellant's gang affiliation was not reliable, that his opinion would not be helpful to the jury, and that the prejudicial effect of his opinion outweighed its probative value. The trial court found that Sergeant Ponder was qualified to render an expert opinion on appellant's gang affiliation, and it ruled that Ponder's testimony was admissible.

         Before the jury, Sergeant Ponder testified that there are about 200 documented gangs in the Houston area, with forty to fifty active gangs. He testified that he is familiar with the Bloods, a street gang based in Los Angeles that has ten or twelve subsets in the Houston area, their colors, and their major symbols. Sergeant Ponder stated that the Bloods are associated with "[a]ll types of criminal activity, " including weapons offenses, narcotics offenses, assaults, thefts, robberies, and murders. He testified that he determined that appellant was a gang member and that he based this determination on viewing appellant's tattoos and on the fact that appellant self-admitted to being a gang member and is documented in the Gang Tracker database. The trial court admitted several photographs showing appellant's extensive tattoos covering most of his body, and Sergeant Ponder pointed out numerous tattoos displaying phrases and symbols connected with the Bloods and the Dead End Alliance.

         The jury assessed appellant's punishment at fifty years' confinement. This appeal followed.

         Sufficiency of Evidence

         In his first issue, appellant contends that the State failed to present sufficient evidence that he was the person driving the vehicle that evaded Officer Meyers. Specifically, appellant contends that the facts that the chase happened while it was dark outside, that Officer Meyers identified appellant as the driver solely through the car mirrors, and that the car spun after it crashed into another vehicle outweigh Officer Meyers's in-court identification of appellant as the driver.

         A. Standard of Review

         When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016). The jurors are the exclusive judges of the facts and the weight to be given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). We may not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We afford almost complete deference to the jury's credibility determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); ...

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