Jelks v. State

Full title: EUGENE JELKS, JR., Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Oct 16, 2008

No. 14-07-00295-CR (Tex. App. Oct. 16, 2008)

Opinion

No. 14-07-00295-CR

Judgment rendered and Memorandum Opinion filed October 16, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).

On Appeal from the 185th District Court, Harris County, Texas, Trial Court Cause No. 1057145.

Panel consists of Chief Justice HEDGES and Justices GUZMAN and BROWN.

MEMORANDUM OPINION

ADELE HEDGES, Chief Justice.

Appellant entered a plea of not guilty to the offense of possession of a controlled substance with intent to deliver. He was convicted, and the jury assessed punishment, enhanced by two prior convictions, at 30 years' confinement in the Institutional Division of the Texas Department of Criminal Justice. In two issues, he contends that (1) the evidence was factually insufficient to support his conviction, and (2) the trial court erred in denying his motion to suppress. We affirm.

I. BACKGROUND

On February 9, 2006, Deputy M.D. Mehring of the Harris County Sheriff's Department stopped a vehicle for failure to signal turning from a major roadway into a private driveway. There were two people in the vehicle. Because Deputy Mehring was riding alone, he called for back-up officers. When Mehring ran a computer check of the driver, he found she had open arrest warrants. While waiting for confirmation of the warrants, the back-up officers arrived. The back-up officers were Deputies VanDine and Rocabado of the Harris County Sheriff's Department.¹ Appellant was the passenger in the vehicle. When Deputy VanDine arrived at the location of the traffic stop, he approached appellant and asked to see his driver's license. VanDine explained that because the driver had outstanding warrants, the vehicle would be released to the passenger if he had a valid driver's license. VanDine noted that appellant was looking at him and Deputy Rocabado with a scared, nervous expression. He and Rocabado noticed that, despite the cool weather, appellant was sweating, shaking nervously, and moving around in the passenger seat. Because of appellant's behavior, VanDine explained that it is routine to ask the individual to step out of the car so that he can be frisked for weapons. While checking for weapons, VanDine felt something hard, round, and narrow between appellant's buttocks. VanDine testified that whenever he placed his hand on the object, appellant turned and attempted to move away from VanDine. A computer check on appellant's driver's license revealed two outstanding warrants. Because of the outstanding warrants, VanDine handcuffed appellant with his hands behind his back and placed him in the back seat of the patrol car behind the passenger seat.² Deputy Rocabado was seated in the passenger seat during the drive to the Humble city jail. She testified that during the ride to the jail, appellant twisted and turned in his seat and kicked the bottom of her seat. Upon arrival, the patrol car was parked and locked in a sally port, and appellant was immediately taken to the jail where he was strip-searched. The deputies performing the search did not find the object felt by VanDine at the scene, so they searched the patrol car, which was still parked in the sally port. While searching the car, they found an item under the front passenger seat, which was later identified as a cocaine cookie weighing 27.25 grams. Both Rocabado and VanDine testified that prior to leaving on patrol that day they had thoroughly searched the patrol car. Earlier in the day, while off duty, VanDine had thoroughly cleaned the car, including detailing the interior. VanDine routinely checks his patrol car prior to leaving on patrol to ensure that if anyone left anything in the car he could identify the item's owner. VanDine was Rocabado's supervisor during her training, so he instructed her to thoroughly search the car before they left on patrol that day. After Rocabado searched the car, VanDine double-checked her search. Both deputies found nothing in the car prior to leaving on patrol that day. Further, no one else had been in the patrol car until appellant was arrested. Appellant was subsequently indicted for the offense of possession of a controlled substance with intent to deliver. His first trial in October, 2006 ended in a mistrial. After a second trial, he was convicted, and the jury assessed punishment at 30 years' confinement.

II. FACTUAL SUFFICIENCY

In his first issue, appellant contends the evidence is factually insufficient to support his conviction for possession with intent to deliver.

A. Standard of Review

In a factual sufficiency review, we review all of the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414B15 (Tex.Crim.App. 2006). We then ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the jury's verdict seems clearly wrong and manifestly unjust, or whether, considering conflicting evidence, the jury's verdict is against the great weight and preponderance of the evidence. Id.; Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). We give deference to the jury's determinations, particularly those concerning the weight of the evidence and the credibility of witness testimony. See Johnson, 23 S.W.3d at 8B9.

B. Possession

To prove the offense of possession of a controlled substance, the State was required to show that appellant (1) exercised actual care, control, and management over the controlled substance and (2) was conscious of his connection with the controlled substance and knew what it was. See TEX. HEALTH SAFETY CODE ANN. §§ 481.002(38), 481.112(a) (Vernon 2003 Supp. 2007); Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). Because appellant was not in exclusive possession of the vehicle where the contraband was found, the State must affirmatively link appellant to the contraband. Brown, 911 S.W.2d at 748. This proof must have established that his connection with the cocaine was more than just fortuitous. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005). Links to demonstrate that connection could include things such as whether the cocaine was (1) in plain view, (2) conveniently accessible to the accused, (3) in a place owned by the accused, (4) in a car driven by the accused, (5) found on the same side of the car as the accused, and (6) found in an enclosed space; and whether (7) the accused's conduct indicated a consciousness of guilt. See Hurtado v. State, 881 S.W.2d 738, 743 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). The record reflects the following facts:

• When approached by the deputies, appellant acted nervous and was moving around in his seat.

• When VanDine frisked appellant, he turned and tried to move away from VanDine.

• VanDine felt a hard, round object between appellant's buttocks, a location Officer Abraham Vanderberry testified was a common location for concealment of controlled substances.

• The cocaine was not in the patrol car before appellant was placed in the back seat.

• Appellant was the only occupant of the back seat.

• While being transported, appellant twisted and turned in his seat and kicked the front passenger seat where the cocaine was eventually found.

• The hard, round object previously felt by VanDine was not found during the strip-search of appellant.

• While the car was parked in the sally port, it was locked and no one else had access to it.

While the cocaine was not in plain view under the back seat of the patrol car and while the car was not owned or driven by appellant, the cocaine was found on the same side of the car as appellant in an enclosed space in which appellant was the only occupant. We find the evidence is not so weak that the jury's verdict seems clearly wrong or manifestly unjust. Appellant did not present evidence on his own behalf, but relied on his cross-examination of the State's witnesses. Considering any conflicting evidence, we find that the jury's verdict is not against the great weight and preponderance of the evidence. The evidence was factually sufficient to show that appellant exercised care, custody, and control over the cocaine and that he knew that it was cocaine.

C. Intent to Deliver

Appellant further claims that the evidence is factually insufficient to show that he had intent to deliver the cocaine. Intent to deliver may be shown by circumstantial evidence, including expert testimony by experienced law enforcement officers. Reed v. State, 158 S.W.3d 44, 48B49 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). Intent to deliver may be inferred from the quantity of drugs possessed, and it may also be inferred from the manner in which the drugs are packaged. Rhodes v. State, 913 S.W.2d 242, 251 (Tex.App.-Fort Worth 1995), aff'd, 945 S.W.2d 115 (Tex.Crim.App. 1997). The record reflects that appellant possessed a cookie of cocaine, which weighed 27.25 grams. Officer Abraham Vanderberry of the Houston Police Department narcotics division testified that a personal use quantity of crack cocaine is two to three rocks, which are usually cut off of a cookie with a razor blade. Each rock usually weighs between .1 and .2 grams. He further testified that 27 grams of crack cocaine is a "distributive amount of cocaine." Based on the amount of cocaine appellant possessed, the way it was packaged, and the expert testimony of Officer Vanderberry, we find that the proof of appellant's guilt was not so obviously weak as to undermine confidence in the jury's determination, nor was the contradictory evidence so strong that the standard of proof beyond a reasonable doubt could not have been met. See Watson, 204 S.W.3d at 414B15. Appellant's first issue is overruled.

III. MOTION TO SUPPRESS

In his second issue, appellant contends that the evidence obtained as a result of his arrest was not admissible because the traffic warrants on which appellant was arrested were not supported by statements of probable cause. We review a trial court's ruling on a motion to suppress under an abuse of discretion standard. Villareal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). The trial judge is the sole fact finder and we give almost total deference to the trial court's determination of historical facts when supported by the record. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000). The same deference is accorded to determinations of mixed questions of law and fact if their resolution depends upon witness credibility and demeanor. Id. We will sustain the trial court's ruling if it is reasonably supported by the evidence and is correct on any theory of law applicable to the case. Villarreal, 935 S.W.2d at 13. During a traffic stop, an officer is entitled to request a driver's license, proof of financial responsibility, and registration and run a computer check on the information provided. See United States v. Brigham, 382 F.3d 500, 509 (5th Cir. 2004); Kothe v. State, 152 S.W.3d 54, 66B67 (Tex.Crim.App. 2004). If the computer check shows an outstanding warrant for the individual's arrest, the officer has probable cause to arrest the individual. Haley v. State, 480 S.W.2d 644, 645 (Tex.Crim.App. 1972); Oliver v. State, 10 S.W.3d 411, 416 (Tex.App.-Waco 2000, no pet.); TEX. CODE CRIM. PROC ANN. art. 15.26 (Vernon 2005). Deputy VanDine explained that he checked appellant's driver's license because he would release the vehicle to appellant if his driver's license was valid. Appellant was arrested on the outstanding traffic warrants that were discovered as a result of the computer check of his driver's license. Appellant challenged the arrest, alleging that the warrants were not based on probable cause. If the State seeks to justify an arrest based on an arrest warrant, it must produce both the warrant and the supporting affidavit in the trial court. Etheridge v. State, 903 S.W.2d 1, 19 (Tex.Crim.App. 1994). At trial, the State produced the warrants and affidavits to the trial court. By doing so, the State met its burden to produce the documents. See Moreno v. State, 858 S.W.2d 453, 462 (Tex.Crim.App. 1993). Further, the trial court issued findings of fact and conclusions of law in which it concluded, among other things, that the warrants for which appellant was arrested were verified and valid. Once the State met its burden to produce the warrants and affidavits, it became appellant's responsibility to see that the documents were included in the appellate record. Id. The appellate record contains only copies of the warrants, not the affidavits. It is appellant's responsibility to ensure that the search warrant and affidavit are included in the record on appeal. Price v. State, 143 S.W.3d 158, 160 (Tex.App.-Waco 2004, pet. ref'd); De La Garza v. State, 762 S.W.2d 899, 903 (Tex.App.-Houston [14th Dist.] 1988, pet. ref'd). Because appellant failed to include the affidavits in the appellate record, nothing is preserved for review. Appellant's second issue is overruled. The judgment of the trial court is affirmed.