Opinion
No. 06-03-00262-CR
Submitted: August 18, 2004.
Decided: October 13, 2004. DO NOT PUBLISH.
On Appeal from the 115th Judicial District Court Upshur County, Texas, Trial Court No. 13,284.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Benjamin Fred Clark appeals his conviction by jury trial for possession of a controlled substance, namely methamphetamine. The sentence was enhanced by a prior felony conviction, and Clark was sentenced to ten years' imprisonment. Clark complains that the trial court erred in denying his motion to suppress evidence discovered in an improper "inventory search" of his vehicle and that the evidence was legally and factually insufficient. We affirm the conviction. The evidence at trial showed that Clark failed to dim his headlights within 500 feet of Deputy Wayde Davis, an Upshur County Deputy Sheriff. When Davis attempted to stop Clark for the traffic violation, Clark fled and led the deputy on a high-speed chase until Clark crashed his truck into a creek. Davis observed Clark exit the vehicle and attempt to hide something in the creek a short distance from the truck. The deputies discovered three containers of methamphetamine in the creek bed. Inventory Search In his first point of error, Clark challenges the denial of his motion to suppress the items discovered in the "inventory search." We agree that an inventory search must be justified by evidence of the arresting agency's normal operating policy or established routine. Deputy Marty Massoletti, a deputy sheriff with the Upshur County Sheriff's Department, testified he conducted an "inventory search" of Clark's truck and discovered in the truck bed a can of acetone, a can of charcoal lighter fluid in a brown paper bag, as well as a hypodermic needle in a plastic trash bag. Deputy Massoletti and Paul Alan Steelman, an employee of the Upshur County Sheriff's Department assigned to the Drug Enforcement Agency in Tyler, both testified that these items were commonly used in the manufacture and use of methamphetamine and that the holes in the bottoms of the cans were consistent with use for the manufacture of methamphetamine. The United States and Texas Constitutions both guarantee the right to be secure from unreasonable searches and seizures. U.S. Const. amend. IV; Tex. Const. art. I, § 9. The Texas Code of Criminal Procedure forbids any evidence obtained in violation of such guarantees to be admitted against an accused. Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp. 2004-2005). There are, however, certain exceptions to the warrant requirement under which federal and state law allow warrantless searches. One exception is an inventory search conducted pursuant to "standardized criteria" or "established routine." Florida v. Wells, 495 U.S. 1, 4 (1990). Clark first argues that Article I, Section 9 of the Texas Constitution provides greater protection than the Fourth Amendment to the United States Constitution. Clark cites the plurality decision of the Texas Court of Criminal Appeals in Autran v. State, 887 S.W.2d 31 (Tex.Crim.App. 1994), for the proposition. In Autran, a plurality of the Texas Court of Criminal Appeals held that Article I, Section 9 of the Texas Constitution provides greater protection than the Fourth Amendment in the context of inventory searches of closed containers. Id. at 42. The members of the court joining in the plurality opinion stated they would "refuse to presume the search of a closed container reasonable under art. I, § 9 simply because an officer followed established departmental policy." Id. The opinion concluded that peace officers "may not rely upon the inventory exception" to conduct a warrantless search of a closed or locked container. Id. This Court has previously noted that Autran was a plurality decision and is not binding precedent, and we rejected the contention that the Texas Constitution provides greater protection than the United States Constitution. See Madison v. State, 922 S.W.2d 610, 613 (Tex.App.-Texarkana 1996, pet. ref'd); Hatcher v. State, 916 S.W.2d 643, 645 (Tex.App.-Texarkana 1996, pet. ref'd). Several of our sister courts have likewise rejected the argument that Article I, Section 9 of the Texas Constitution provides greater protection from inventory searches than the Fourth Amendment. See Rothenberg v. State, No. 01-03-00364-CR, 2004 Tex. App. LEXIS 5145 (Tex.App.-Houston [1st Dist.] June 10, 2004, no pet. h.); Garza v. State, 137 S.W.3d 878, 884 (Tex.App.-Houston [1st Dist.] 2004, pet. granted); State v. Mercado, 993 S.W.2d 815, 818-19 (Tex.App.-El Paso 1999, pet. ref'd); Jurdi v. State, 980 S.W.2d 904, 907 (Tex.App.-Fort Worth 1998, pet. ref'd); Wells v. State, 968 S.W.2d 483, 486 (Tex.App.-Eastland 1998, pet. ref'd); Trujillo v. State, 952 S.W.2d 879, 881 (Tex.App.-Dallas 1997, no pet.); cf. Johnson v. State, 912 S.W.2d 227, 232 (Tex.Crim.App. 1995). We see no reason to reconsider our past decisions, and we reject Clark's argument that the Texas Constitution provides greater protection than the Fourth Amendment. In the alternative, Clark argues that the inventory search was improper because the State failed to present any evidence that the search was conducted pursuant to standard operating procedure of the investigatory agency. In Wells, the United States Supreme Court affirmed the Florida Supreme Court's decision to suppress evidence found in a closed container during an inventory search, because police had "no policy whatever with respect to the opening of closed containers encountered during an inventory search." Wells, 495 U.S. at 4-5. The Court reasoned that "standardized criteria . . . or established routine must regulate the opening of containers found during inventory searches." Id. at 4. Since "there was no evidence that the inventory search was done in accordance with any standardized inventory procedure," the trial court should have suppressed the evidence. Id. at 5 (Brennan, J., concurring). While the Supreme Court rejected the proposition that a policy could only allow the search of all containers or a search of no containers, the Supreme Court emphasized that inventory searches must be conducted pursuant to "standardized criteria" or "established routine." Id. at 4. The inventory exception to the warrant requirement exists in order to promote the public policies of protecting an owner's property while it is in police custody; insuring against a claim of lost, stolen, or vandalized property; and guarding police from danger. Id. While an officer may exercise some discretion in deciding whether to examine closed containers, the record must at least indicate that police followed some "standardized criteria" or "established routine" when conducting the search. Id. An inventory search may not serve as a "ruse for a general rummaging" in order to discover incriminating evidence. Id. Although the Supreme Court indicated that officers could exercise some discretion in executing the inventory search, Wells forbids "uncanalized discretion" and requires that an inventory search be conducted pursuant to "standardized criteria" or "established routine." Id. As this Court has noted in dicta, failure by the State to show evidence that the search was conducted pursuant to the police department's procedure will invalidate the search. While Deputy Davis testified that the search of the bed of the truck was an inventory search, there was no evidence introduced at the hearing on the motion to suppress that the department had a policy concerning inventory searches or that the search was conducted according to "established routine." The State had to prove the applicability of the exception to the warrant requirement. See Yaws, 38 S.W.3d at 723. However, Deputy Massoletti testified at trial that it is the policy of the Upshur County Sheriff's Department to conduct an inventory search concerning all property impounded and that an inventory search is conducted each time a person is placed under arrest. In reviewing a trial court's decision concerning a motion to suppress, we generally consider only evidence adduced at the suppression hearing, since the ruling was based on that evidence, rather than evidence introduced later in the trial. Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App. 1996); Green v. State, 78 S.W.3d 604, 608 (Tex.App.-Fort Worth 2002, no pet.); Westfall v. State, 10 S.W.3d 85, 89 n. 1 (Tex.App.-Waco 1999, no pet.). However, when the legality of the seizure is relitigated at trial, consideration of relevant trial testimony is appropriate in our review. Rachal, 917 S.W.2d at 809; Green, 78 S.W.3d at 608; In re L.R., 975 S.W.2d 656, 658 (Tex.App.-San Antonio 1998, no pet.). "Where the State raises the issue at trial either without objection or with subsequent participation in the inquiry by the defense, the defendant has made an election to re-open the evidence, and consideration of the relevant trial testimony is appropriate in our review." Rachal, 917 S.W.2d at 809. The Texas Court of Criminal Appeals concluded it would be "unreasonable to ignore trial evidence in our review of the court's suppression decision only to be confronted by the evidence in our consideration of whether the error was harmless." Id. At trial, Clark objected to "anything that was found in the inventory search" and was granted a running objection on all items found in the inventory search. There was no consensual relitigation of the inventory search. Therefore, we cannot consider the evidence presented at trial concerning the department policy for inventory searches in determining the admissibility of items found from such search. Admission of evidence found from that search was error. We are placed in the position that the Texas Court of Criminal Appeals envisioned in Rachal. Id. In determining if error was committed, we may not consider the evidence introduced at the trial concerning the police department policy for conducting an inventory search; however, when conducting a harmless error review, we cannot ignore such evidence. The error would clearly be harmless because the evidence at trial indicates that the inventory search was conducted pursuant to "standardized criteria" or an "established routine." A violation of the Fourth Amendment's guarantee against unreasonable searches and seizures is an error of constitutional dimension. Accordingly, our analysis is a harmless error review pursuant to Tex.R.App.P. 44.2(a), and we must reverse unless we determine beyond a reasonable doubt the error did not contribute to the conviction or punishment. Deputy Massoletti testified at trial that it is the policy of the Upshur County Sheriff's Department to conduct an inventory search concerning all property impounded and that an inventory search is conducted every time a person is placed under arrest. Further, the items seized in the search did not result in any additional charges. Clark was charged with possession of methamphetamine. The State did not bring charges against Clark for any of the items discovered in the search of the truck. Possession of the items found in the truck, i.e., the acetone, lighter fluid, and hypodermic needle, is not illegal. Although Steelman testified the compounds found were commonly used in the manufacture of methamphetamine, Clark was not charged with manufacture of a controlled substance, but rather only with possession of a controlled substance. As discussed below, sufficient evidence exists even if the items had been suppressed. We conclude beyond a reasonable doubt that the evidence did not contribute to the conviction or punishment in this case. Factual and Legal Sufficiency In his remaining points of error, Clark contends the evidence is factually and legally insufficient to support the verdict. He argues that the evidence is insufficient because the evidence discovered in the alleged inventory search should have been suppressed. Specifically, Clark contends there are insufficient affirmative links to connect him to the contraband In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). This calls on the 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. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). When reviewing a challenge to the factual sufficiency of the evidence to support the conviction, we are required to determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex.Crim.App. Apr. 21, 2004). There are two ways in which we may find the evidence to be factually insufficient. First, if the evidence supporting the verdict, considered alone, is too weak to support the jury's finding of guilt beyond a reasonable doubt, then we must find the evidence insufficient. Id. Second, if — when we weigh the evidence supporting and contravening the conviction — we conclude that the contrary evidence is strong enough that the State could not have met its burden of proof, we must find the evidence insufficient. Id. "Stated another way, evidence supporting guilt can `outweigh' the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard." Id. If the evidence is factually insufficient, then we must reverse the judgment and remand for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996). Clark contends that, if the motion to suppress had been granted, insufficient evidence existed to affirmatively link him to the methamphetamine. Because the contraband was not found on the accused's person or in the exclusive possession of the accused, the evidence must affirmatively link the accused to the contraband Jones v. State, 963 S.W.2d 826, 830 (Tex.App.-Texarkana 1998, pet. ref'd). This Court has held that factors which should be considered when evaluating whether an affirmative link exists are:
1) the defendant's presence when the search was executed; 2) whether the contraband was in plain view; 3) the defendant's proximity to and the accessibility of the contraband; 4) whether the defendant was under the influence of a controlled substance when arrested; 5) whether the defendant possessed other contraband when arrested; 6) whether the defendant made incriminating statements when arrested; 7) whether the defendant attempted to flee; 8) whether the defendant made furtive gestures; 9) whether there was an odor of the contraband; 10) whether other contraband or drug paraphernalia was present; 11) whether defendant owned or had the right to possess the place where the drugs were found; and 12) whether the place the drugs were found was enclosed.Id.; see Chavez v. State, 769 S.W.2d 284, 288-89 (Tex.App.-Houston [1st Dist.] 1989, pet. ref'd). Clark fled from the police at approximately 11:00 p.m., made furtive gestures, and was observed attempting to hide something in the creek bed. Clark was the only occupant of the vehicle. Deputy Davis testified that the chase, which ended when Clark crashed through several trees and into the creek bed, lasted for over a mile. During the chase, Davis claims Clark exceeded the speed limit, failed to signal his turns, and almost lost control of his truck twice before the crash. During one of these periods of diminished control, Davis observed the truck almost leave the road, slide sideways, and heard the tires screech. Once Clark had crashed the truck through the trees into the creek bed, Davis maintained surveillance with his headlights and flashlight. When he reached the woods, Davis testified that Clark "fell out" of the wrecked pickup. Davis observed Clark run to the other side of the creek and make "a bunch of movements like he was trying to hide something." The furtive gestures consisted of "moving his arms around a lot," but not in a manner consistent with trying to climb out of the creek. Davis testified that he formed the impression Clark was attempting to throw something. When arrested, Clark's forearm had sustained an injury. Deputy Massoletti testified he found two containers containing methamphetamine. One container was located approximately six feet from the creek bed, and another container was located approximately six to ten inches from the first. Trooper Curtis Lee Hollis, with the Texas Department of Public Safety, found a third container, a brown bottle, lying approximately ten to fifteen feet from the edge of the creek. Massoletti testified there were no leaves, twigs, dew, dirt, or rain spots on the containers. Trooper Hollis testified the bottle he discovered did not appear to have been there long. Massoletti testified there was nothing about the condition of the containers that would indicate they had been on the forest floor for any length of time. Clark cites Denbow v. State, 837 S.W.2d 235 (Tex.App.-Dallas 1992, pet. ref'd); Hernandez v. State, 739 S.W.2d 957 (Tex.App.-San Antonio 1987, pet. ref'd); and Williams v. State, 859 S.W.2d 99 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd), for the proposition that flight from the police and presence near contraband are insufficient to affirmatively link the accused to the contraband In Denbow, the appellant fled from the police, crashed his vehicle in a parking lot, and then fled on foot. Denbow, 837 S.W.2d at 236. A bottle containing methamphetamine was found, along with one of his gloves and his hat, within a foot of where the appellant had been. Id. In Hernandez, the appellant was found lying unconscious in a known drug area with a package of heroin two to four inches from his hand Hernandez, 739 S.W.2d at 957. Although the appellant appeared to be intoxicated, the San Antonio Court of Appeals held that the evidence was insufficient to affirmatively link the accused to the contraband Id. at 958. The appellant in Williams fled from the police, matched the description of a person the police had been informed had been engaged in narcotics trafficking, the controlled substance was discovered near where the appellant had been, and no other persons or packages were found in the area. Williams, 859 S.W.2d at 101. The First District Court of Appeals held that the evidence did not provide sufficient affirmative links. Id. at 101-02. These cases, though, are distinguishable from the current situation. First, Denbow required that the State exclude every other reasonable hypothesis except that of the guilt of the defendant. See Denbow, 837 S.W.2d at 238. The Texas Court of Criminal Appeals has explicitly rejected the "reasonable hypothesis" construct. See Geesa v. State, 820 S.W.2d 154, 156-61 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000); Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim.App. 1995); Jennings v. State, 107 S.W.3d 85, 89 (Tex.App.-San Antonio 2003, no pet.); Hernandez v. State, 867 S.W.2d 900, 904 (Tex.App.-Texarkana 1993, no pet.). The affirmative link to the contraband does not need to exclude every other reasonable hypothesis except the defendant's guilt. In addition, Hernandez and Williams are distinguishable from the current case because, in this case, there was evidence of suspicious gestures. In Hernandez and Williams, the police did not observe any suspicious gestures. Hernandez, 739 S.W.2d at 957 (suspect unconscious); Williams, 859 S.W.2d at 101 (noting there was no evidence of furtive gestures). "The number of factors present is not as important as the degree to which the factors tend to affirmatively link the accused to the contraband" Williams v. State, 906 S.W.2d 58, 65 (Tex.App.-Tyler 1995, pet. ref'd). Even without the evidence discovered during the search of the truck, there are sufficient affirmative links. Clark fled from the police, the truck crashed at the scene belonged to him, the contraband did not appear to have been in the woods long, and Clark was observed making suspicious gestures. Further, the evidence concerning the items discovered during the inventory search (acetone, lighter fluid, and hypodermic needle) may be considered in a legal and factual sufficiency review. "In applying the Jackson sufficiency review, an appellate court `must consider all evidence which the jury was permitted, whether rightly or wrongly, to consider.'" Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App. 2004). "[T]he same rule and reasoning are applicable to a factual sufficiency review." Camarillo v. State, 82 S.W.3d 529, 537 (Tex.App.-Austin 2002, no pet.). The Texas Court of Criminal Appeals has explained that, if a portion of the evidence is erroneously admitted, the accused may complain on appeal of that error, and if the complaint has merit and the error is reversible, a new trial should be ordered. But jurors do not act irrationally in considering evidence admitted by the trial court. A reviewing court is obliged to assess the jury's factual findings from this perspective. See Thomas v. State, 753 S.W.2d 688, 695 (Tex.Crim.App. 1988). The items discovered during the search further link Clark to the contraband Viewed in a light most favorable to the prosecution, a rational juror could have found all the essential elements beyond a reasonable doubt. Viewed in a neutral light, a rational juror could have found Clark guilty beyond a reasonable doubt. The contrary evidence is not strong enough that the State could not have met its burden of proof. Although Deputy Davis observed that Clark's arm was bleeding profusely, there was no blood on the objects containing the contraband We note that the police did not fingerprint any of the items containing the contraband We further note that the contraband was found in a public area. After weighing the evidence supporting and contravening the conviction, the contrary evidence is not strong enough that the State could not have met its burden of proof. Further, the evidence is not too weak to support the jury's finding of guilt beyond a reasonable doubt. The evidence is legally and factually sufficient to support the jury's verdict. We affirm the judgment of the trial court.
Items found in the open bed of a pickup truck may be in plain view. Evidence found in plain view is admissible if the officer had a legitimate reason to be where he or she was and also had probable cause to believe that the objects were associated with criminal activity. Tex. v. Brown, 460 U.S. 730, 742 (1983); Simmonds v. State, 51 S.W.3d 445, 449 (Tex.App.-Texarkana 2001, no pet.). The State does not contend that the "plain view" theory justifies admission of the evidence found in the truck.
Deputy Davis testified that he was not sure what chemical was in the can, but that its label indicated it was used to clean adhesives. Steelman, an employee of the Upshur County Sheriff's Department assigned to the Drug Enforcement Agency in Tyler, testified the can contained acetone.
The State argues that the Fourth Amendment permits an inventory search provided "the officer follows departmental policy or, in the officer's opinion, the search furthers the purposes of an inventory search." Autran v. State, 887 S.W.2d 31, 35 (Tex.Crim.App. 1994). However, as noted above, Autran is not binding precedent.
Yaws v. State, 38 S.W.3d 720, 723 (Tex.App.-Texarkana 2001, pet. ref'd) (affirming search where the officers testified that the search was conducted pursuant to departmental procedures).
Possession of methamphetamine in an amount of more than one gram but less than four grams is a third-degree felony. See Tex. Health Safety Code Ann. § 481.102 (Vernon Supp. 2004-2005), § 481.115 (Vernon 2003). Because Clark had been previously convicted of a felony, the punishment range was enhanced to a second-degree felony. See Tex. Pen. Code Ann. § 12.42(a)(3) (Vernon Supp. 2004-2005). Clark pled true to the enhancement paragraph. A person convicted of a second-degree felony is subject to not more than twenty years' or less than two years' imprisonment. Tex. Pen. Code Ann. § 12.33 (Vernon 2003). The jury assessed punishment at ten years' imprisonment. Clark had previously been convicted of a third-degree felony for possession of a controlled substance. Clark's community supervision for that prior conviction had been revoked for possession of methamphetamine. More recently, Clark had been convicted of a state jail felony for possession of marihuana. Given the fact that the sentence was within the midrange of the punishment available and considering Clark's past criminal history, we concluded that the error, if any, was harmless beyond a reasonable doubt.
Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim.App. 1995). While alternative reasonable hypotheses should be considered when reviewing the factual sufficiency of the evidence, the mere existence of an alternative reasonable hypothesis does not render the evidence factually insufficient. Richardson v. State, 973 S.W.2d 384, 387 (Tex.App.-Dallas 1998, no pet.). When an appellant identifies an alternative reasonable hypothesis raised by the evidence, the standard of review remains the same. Id. A verdict may be overturned only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.