Wilson, Erma Fay v. The State of Texas--Appeal from 238th District Court of Midland County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ERMA FAY WILSON, )

) No. 08-01-00319-CR

Appellant, )

) Appeal from the

v. )

) 238th District Court

THE STATE OF TEXAS, )

) of Midland County, Texas

Appellee. )

) (TC# CR-26,371)

)

O P I N I O N

Erma Fay Wilson appeals her conviction for the offense of possession of a controlled substance, to-wit: cocaine, in an amount of four grams or more but less than 200 grams, by aggregate weight including any adulterants and dilutants. A jury found Appellant guilty and assessed punishment at 8 years= imprisonment in the Institutional Division of the Texas Department of Criminal Justice, probated to 8 years community supervision, and a suspended fine of $1,000. Appellant raises four issues on appeal, in which Appellant challenges the trial court=s denial of the motion to suppress evidence and also argues that the evidence of Appellant=s possession of a controlled substance was legally and factually insufficient to sustain the conviction. We affirm.

SUMMARY OF THE EVIDENCE

On August 24, 2000, Joel Bermea and John Beasley, police officers for the City of Midland, Texas, were on duty patrolling a high crime area of Midland known as Athe Flats@ around nine o=clock in the evening. At the time, Officer Bermea was a field training officer under the supervision of Officer Beasley. Officer Beasley testified that in his experience the Flats neighborhood was an area where assaults, disorderly conduct, public intoxication, narcotics trafficking, and weapons offenses were common. That evening, Officer Bermea, as instructed by Officer Beasley, pulled in front of Little Man=s Barber Shop, turned off the patrol car headlights, and left the parking lights on. Officer Beasley testified that he took Officer Bermea to that area to train him in observation techniques of suspicious behavior. The police officers observed a gathering of approximately six or seven people who were standing next to or sitting on an older model vehicle. Officer Beasley testified that the group was initially sitting on the hood of the car, but got off the car and huddled together towards the back of the car as if discussing something or hiding something. Officer Beasley instructed Officer Bermea to look in the direction of the crowd to see if anyone suspiciously walked away or walked away once they noticed the officers= presence. After about thirty-five seconds, the officers observed Appellant walk away at a rapid pace and Officer Beasley told Officer Bermea to make contact with her. According to Officer Beasley, in his experience people have disposed of narcotics or drug paraphernalia in many of the establishments and clubs in the area after running or walking away. Officer Beasley also testified that he suspected that based on the dramatic change in her behavior, Appellant may have had contraband or a warrant for her arrest, or another reason for wanting to try to get away from the police.

As Appellant started walking east, the officers followed Appellant in their patrol car. The officers approached Appellant and Officer Bermea asked Appellant to stop. Appellant began to Abackpedal,@ i.e. started walking away, and said Ano@ in response. Officer Bermea again asked Appellant to stop. After the second request, Officer Bermea exited the patrol car and told Appellant to stop and that he needed to speak with her. Appellant then ran away and both officers pursued her on foot. Appellant ran into a parking lot and under a metal post fence into a driveway. Appellant stumbled and Officer Bermea was able to grab her. Appellant fell to the ground and briefly got back on her feet before Officer Bermea took control of her right arm and Officer Beasley took her left arm. Officer Beasley stated that it took about a minute for them to get control of Appellant=s arms. Officer Bermea then placed Appellant in handcuffs while she was on the ground. Shortly after, Officer Tim Stone arrived and stood by Officer Bermea while Officer Beasley went to retrieve the patrol car. Officer Bermea testified that Appellant remained on the ground until Officer Beasley brought the patrol car around fifteen to twenty seconds later. Officer Bermea placed Appellant in the vehicle and stayed with her, standing two or three feet away from the patrol car. In his testimony, Officer Bermea described Appellant as Akind of hysterical, saying why are we harassing her@ and that she was afraid of police. Officer Bermea observed Officer Stone pointing something out to Officer Beasley, but could not see what it was from the patrol car. Officer Stone testified that he pointed to a clear plastic baggie with a

rock-like substance inside of it located where Appellant had been lying on the ground. When Officer Beasley picked it up, Appellant began yelling that it was not hers and stated either, Ayou can=t put that on me, Beasley, it=s not mine@ or Adon=t put that on me, Beasley.@ At that point, none of the officers had told Appellant what it was or had otherwise identified the substance. Lab reports later determined that the substance was 5.64 grams of crack cocaine, including adulterants and dilutants.

Officers Beasley and Stone both testified that it was unusual to find such a big rock of crack cocaine in the Flats. Officer Beasley did not see any cocaine in the area while he was in pursuit of Appellant nor did he expect to find cocaine in the middle of the driveway not concealed. Officer Beasley estimated that its street value was approximately five hundred dollars. According to Officer Beasley, the amount of crack cocaine was too big and worth too much for somebody just to leave on the driveway or sidewalk out in the open.

On cross-examination, Officers Beasley and Bermea admitted that they did not see Appellant throw anything down on the ground while in pursuit. Both officers admitted that they never saw Appellant in possession of the cocaine. They also conceded that it did not appear that Appellant had been using cocaine, that no drug paraphernalia was found on her person, and that Appellant was not in exclusive control of the location in which the struggle occurred and where the cocaine was subsequently found. Further Marty Barrett, a Midland Police Identification Specialist testified that he could not obtain any fingerprints off of the plastic baggie.

Motion to Suppress

In Issues One and Two, Appellant argues that the trial court abused its discretion in overruling Appellant=s motion to suppress evidence because the State failed to establish that there was reasonable suspicion to detain Appellant, thereby violating Appellant=s rights under the Fourth Amendment of the United States Constitution and Article 1, section 9 of the Texas Constitution. We are unable to address the merits of this argument because we find that Appellant has waived any error.

In order to preserve a complaint concerning the admission of evidence for appellate review, a party must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling he desired of the court unless the specific grounds were apparent from the context. Tex.R.App.P. 33.1; Tex.R.Evid. 103(a)(1); Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991). It is well settled that when a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object at trial to the same evidence in order to preserve error on appeal. Dean v. State, 749 S.W.2d 80, 83 (Tex.Crim.App. 1988); Gearing v. State, 685 S.W.2d 326, 329 (Tex.Crim.App. 1985), overruled on other grounds, Woods v. State, 956 S.W.2d 33 (Tex.Crim.App. 1997); Traylor v.State, 855 S.W.2d 25, 26 (Tex.App.--El Paso 1993, no pet.). However, when the defendant affirmatively asserts during trial that he has Ano objection@ to the admission of the complained-of evidence, he waives any error in the admission of the evidence despite the adverse pretrial ruling. Dean, 749 S.W.2d at 83; Gearing, 685 S.W.2d at 329; Traylor, 855 S.W.2d at 26.

In this case, Appellant filed a pretrial motion to suppress evidence, which the trial court denied following a hearing. At trial, Appellant was initially granted a running objection as to the cocaine that was seized in this case. Later during the trial, defense counsel agreed to stipulate that the substance seized and analyzed was cocaine and was in the amount of 5.64 grams. The State then offered the evidence after Officer Beasley identified it as the crack cocaine the officers found and defense counsel affirmatively stated Ano objection.@[1] Later in the trial, defense counsel approached the bench and the following exchange occurred:

Defense Counsel: Your Honor, before I proceed, I need to make something clear for the record that when I didn=t object to the cocaine coming into evidence, I assume my running objection as to the reasons previously stated are on record that I do object to its admission under those grounds.

The Court: That is correct. [Defense counsel], you have asked for a running objection, you may have it, and you may object whenever you feel, but I understand you object to the entirety of it, and it=s not necessary for this Court for you to continue to object. I realize that the objection is preserved for my purposes for all part of this trial.

Appellant initially preserved error through the trial court=s adverse ruling on the pretrial motion to suppress. Although not necessary, Appellant requested and was granted a running objection to the cocaine and any reference to it. However, when the State offered the cocaine into evidence, defense counsel affirmatively stated Ano objection,@ rather than merely making no objection to its admission. Furthermore, defense counsel=s attempt to clarify his objection to the admission of the cocaine was not timely and does not reflect his affirmative statement of Ano objection.@ Appellant waived her right to complain on appeal about its admissibility. See Welch v. State, 993 S.W.2d 690, 694 (Tex.App.--San Antonio 1999, no pet.); Hardin v. State, 951 S.W.2d 208, 210 (Tex.App.--Houston [14th Dist.] 1997, no pet.). Therefore, Appellant=s Issues One and Two are overruled.

Sufficiency of the Evidence

In Issues Three and Four, Appellant challenges the legal and factual sufficiency of the evidence to support her conviction for possession of cocaine. Specifically, Appellant contends that the evidence does not affirmatively link Appellant to the cocaine discovered and thus, fails to show that Appellant knowingly or intentionally possessed a controlled substance.

Standard of Review

In determining the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 156-57 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). The test is the same for both direct and circumstantial evidence cases. Geesa, 820 S.W.2d at 161. We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Lucero v. State, 915 S.W.2d 612, 614 (Tex.App.--El Paso 1996, pet. ref=d). Rather, our duty is to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. See Adelman, 828 S.W.2d at 421-22. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. See Lucero, 915 S.W.2d at 614.

In reviewing a factual sufficiency of the evidence challenge, this Court considers all of the evidence, but does not view it in the light most favorable to the verdict. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewisv. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Evidence is factually insufficient if it is so weak that it would be clearly wrong and manifestly unjust to allow the verdict to stand, or the finding of guilt is against the great weight of the available evidence. Johnson, 23 S.W.3d at 11. The correct standard a reviewing court must follow to conduct a Clewis factual sufficiency review of the elements of a criminal offense asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson, 23 S.W.3d at 11. Although we are authorized to set aside the jury=s determination under either of these two circumstances, our review must employ appropriate deference and should not intrude upon the jury=s role as the sole judge of the weight and credibility given to any evidence presented at trial. See id. at 7. We are not free to reweigh the evidence and set aside a verdict merely because we feel that a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Clewis, 922 S.W.2d at 135.

Possession of a Controlled Substance

A person commits the offense of possession of cocaine if she knowingly or intentionally possesses the controlled substance. See Tex.Health & Safety Code Ann. ' 481.115(a) and (d)(Vernon Supp. 2003). Possession is defined as Aactual care, custody, control or management.@ Tex.Health & Safety Code Ann. ' 481.002(38). To support a conviction for unlawful possession of a controlled substance, the State must prove that the accused (1) exercised actual care, custody, control and management over the contraband, and (2) the accused knew the substance she possessed was contraband. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995); Menchaca v. State, 901 S.W.2d 640, 651 (Tex.App.--El Paso 1995, pet. ref=d). An affirmative link must be established between the accused and the contraband demonstrating both that the accused had control over it and had knowledge of its existence and character. See Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995); Levariov. State, 964 S.W.2d 290, 294 (Tex.App.--El Paso 1997, no pet.); Menchaca, 901 S.W.2d at 651. An affirmative link may be shown by either direct or circumstantial evidence and Ait must establish, to the requisite level of confidence, that the accused=s connection with the drug was more than just fortuitous.@ Brown, 911 S.W.2d at 747.

When the contraband is not found on the accused=s person or it is not in the exclusive possession of the accused, additional facts and circumstances must link the accused to the contraband. Menchaca, 901 S.W.2d at 651. These additional factors may include: (1) the accused=s presence when the search was executed; (2) the contraband was in plain view; (3) the contraband is in close proximity to and accessible by the accused; (4) the accused was under the influence of a controlled substance when arrested; (5) the accused was in possession of other contraband when arrested; (6) the accused made incriminating statements when arrested; (7) the accused attempted to flee; (8) the accused made furtive gestures; (9) there was an odor of the contraband; (10) other contraband or drug paraphernalia was present; (11) the accused owned or had the right to possess the place where the contraband was found; (12) the place the drugs were found was enclosed; (13) the amount of contraband; and (14) possession of weapons. See Lassaintv. State, 79 S.W.3d 736, 740-41 (Tex.App.--Corpus Christi 2002, no pet.); Jones v. State, 963 S.W.2d 826, 830 (Tex.App.--Texarkana 1998, pet. ref=d). A circumstantial case is legally sufficient when some of these factors appear in concert. Castillo v. State, 867 S.W.2d 817, 820 (Tex.App. Dallas 1993), vacated on other grounds, 913 S.W.2d 529 (Tex.Crim.App. 1995). One factor alone does not support a finding of an affirmative link. See id. at 820. The number of factors present is less important than the logical force the factors have in establishing the elements of the offense. Hurtado v. State, 881 S.W.2d 738, 743 (Tex.App.--Houston [1st Dist.] 1994, no pet.).

In this case, several affirmative links were established by the evidence. Officers Beasley and Bermea observed behavior by Appellant, which based on Officer Beasley=s experience indicated that Appellant may have been involved in criminal activity. When the officers attempted to speak with Appellant she fled. Knowledge can be inferred from the conduct of the accused and the surrounding circumstances. See Ortiz v. State, 930 S.W.2d 849, 852 (Tex.App. Tyler 1996, no pet.); Menchaca, 901 S.W.2d at 652. A jury could have rationally concluded that Appellant=s flight suggested that she knew she had possession of the cocaine or, at the very least, a consciousness of guilt. During the course of the pursuit, Appellant stumbled and briefly struggled with the officers before they were able to gain control of her arms. During the struggle, Appellant was rolling around on the ground. Police testimony indicated that only Appellant and the officers were at the scene, the driveway of a local establishment. Thus, the contraband was in close proximity to Appellant. The officers also testified that the cocaine was found right in the area of the struggle where Appellant had been lying on the ground. Further, Officer Beasley testified to the unlikelihood that such a large rock of crack cocaine would have been left in the middle of a driveway by someone else. Though not found on her person, a jury could have rationally concluded that Appellant discarded the cocaine during the struggle with the officers. According to Officer Bermea=s testimony, from the patrol car he was unable to view what Officers Beasley and Stone had found in the area of struggle. Officer Bermea stated that Appellant began yelling that it was not hers, even though she was further away from the officers than he. A jury could have reasonably determined that Appellant made incriminating statements at the time of arrest. Viewing the evidence in a light most favorable to the verdict, we conclude a rational jury could find the essential elements of possession of a controlled substance beyond a reasonable doubt.

Appellant further contends that the same evidence is factually insufficient to sustain her conviction. At trial, Appellant presented no evidence to contradict the State=s case. After reviewing all of the available evidence in a neutral light, we cannot conclude the evidence demonstrating proof of guilt is so obviously weak as to undermine confidence in the jury=s determination nor can we conclude the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Johnson, 23 S.W.3d at 11. Appellant=s Issues Three and Four are overruled.

For the reasons stated above, we affirm the trial court=s judgment.

March 27, 2002

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

[1] We note that the record does not reflect whether defense counsel=s Ano objection@ was directed to the physical evidence itself, or to a stipulation that the substance was cocaine.