Ira Lavelle Marsh v. State of Texas--Appeal from 363rd District Court of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Ira Lavelle Marsh

Appellant

Vs. Nos. 11-01-00114-CR & 11-01-00115-CR B Appeals from Dallas County

State of Texas

Appellee

After a joint trial of two indictments, the jury convicted Ira Lavelle Marsh of possession Awith intent to deliver@ cocaine and unlawful possession of a firearm. The trial court assessed punishment[1] in both cases at confinement for 15 years. We affirm.

The Indictments

The first indictment[2] charged that, on or about September 5, 2000, appellant knowingly possessed Awith intent to deliver@ 4 grams or more, but less than 200 grams, of cocaine and that he had one prior felony conviction. The second indictment[3] charged that, on or about September 5, 2000, appellant knowingly possessed a handgun within 5 years following his release from confinement for the prior felony offense. The second indictment also alleged a different prior felony conviction for enhancement of punishment. The jury made a finding that appellant Aused or exhibited a deadly weapon@ during the commission of the offense of possessing cocaine with the intent to deliver.

Issues Presented

 

Appellant filed one brief for both appeals. In Issues Nos. I and II, appellant argues that the trial court erred in overruling his objection to the drug evidence Abased on probable cause@ and in not excluding all drug evidence and the gun Abased on an illegal search.@ Appellant argues in Issue No. III that the use of this evidence violated TEX. CONST. art. I, ' 9. Appellant argues in Issue No. IV that the trial court erred in overruling his objection Ato his statement that he knew the gun was in the apartment,@ in Issue No. V that the evidence was insufficient to prove that he possessed the firearm, and in Issue No. VII that the trial court erred in entering a deadly weapon finding in Athe drug case.@ Appellant argues in Issue No. VI that the trial court erred in overruling his objection to a police officer=s testimony Aabout what crack cocaine does to a person and how it is used@ based on Arelevance.@

The Evidence

The first witness, Officer Samuel Scott McDonnold, testified that he was a police officer with the Dallas Police Department and that he was in uniform on September 5, 2000, when he came into contact with appellant. Officer McDonnold and two other officers were on Afoot patrol@ in a Ahigh crime area.@ As they approached the apartment house at 1603 Grand Avenue, appellant Ajust took off running,@ and Officer McDonnold ran after him. Officer Michael Mata chased appellant up some stairs, and Officer McDonnold ran around to another stairway. When Officer McDonnold got to the second floor, he heard Officer Mata tell appellant to stop. Then, Officer McDonnold ran up and saw both of them on the floor of an apartment. Officer McDonnold identified appellant in open court as the man he saw running and as the man he saw on the floor with the other Dallas police officer. Relevant portions of Officer McDonnold=s testimony read as shown:

Q: And what happened whenever you got there?

A: Officer Mata was on top of Mr. Marsh saying, ACuff him. Cuff him.@ At that time I placed him in handcuffs. Officer Mata immediately got up and retrieved what was a baggie of cocaine off the countertop.

* * *

Q: And what happened at that point?

A: I took Mr. Marsh downstairs to the squad car. I did a search of his person. During that time I recovered three bags of marihuana from his left front pocket as well as one bag of crack cocaine.

* * *

Q: And did you see anything else in that apartment that was considered contraband or - - that night?

 

A: Yes, sir. There was a - - quite a bit of baggies, empty baggies, a scale, a plate that had cocaine residue on it and a pistol, a loaded pistol. (Emphasis added)

Officer McDonnold also testified that appellant had $2,889 in cash when he was arrested. There were A9 hundreds, 8 fifties, 33 twenties, 49 tens, 71 fives, no twos and 84 one dollar bills.@ Officer McDonnold said that this much cash money was Aconsistent with drug transactions.@ The second witness, Officer Michael Mata, testified that he was a police officer with the Dallas Police Department and that he was in uniform on September 5 when he came into contact with appellant. Officer Mata testified that he, Officer McDonnold, and Officer Gibbs were Adoing a walk through@ of the 1500 and 1600 blocks of Grand Avenue. Officer Mata testified that it was Areal dark there@ and that it was an area Awhere they sell a lot of drugs, a lot of prostitution, drinking.@ Officer Mata said that a group of officers would walk through areas like that to see what they Acan walk up on.@ Relevant portions of Officer Mata=s testimony read as shown:

Q: Do you have any idea why [appellant] took off running?

A: As we came around the corner, I saw some guys that were standing right here where the steps are. There=s a little pay phone right there. By the time I look back to see where Officer Gibbs was, we had already started crossing the street. Officer McDonnold had hit the apartment. He had already started running. At that time I got on the radio and said A1603 Grand.@ We had other officers that were in squad cars that were on Grand and back here towards Cleveland. I said A1603 Grand@ so they knew where we were running.

* * *

Q: Okay. What happened when you got to the top of the stairs?

A: Like I said, Officer McDonnold was running up the stairs....[Appellant] doesn=t see me. I=m coming up the stairs. He makes it about halfway. I=m yelling up to him, you know, AStop. Dallas Police.@ I come around the corner. As I come around the corner, he=s turning the door. I look at his hands, and he=s holding a white clear plastic bag. Out of the bottom, I can see what appeared to be large rocks of cocaine.

Q: Was that with the same hand he=s turning the doorknob with, or is it a different hand?

 

A: No, it=s a different hand. He had the doorknob with his left hand, and he had the Acrack@ in his right hand. And I=m facing him. From this doorway to here it=s maybe 15 feet at most. I=m already up running full speed coming around.

Q: Okay. So what happened to that point? You saw him with his hand on the doorknob?

A: Correct. We=re actually probably about this close. As I go to reach for him, he turns the door and goes into the apartment. As he turned into the apartment, I=m actually able to grab him by the back of his jacket. I grabbed his left arm....I=m forcing him to the ground. He throws the dope on top of the bannister and we get tackled to the ground. And then Officer McDonnold comes in after me.

* * *

Q: So what happened at this point? You said you went to the bedroom, bathroom to check for anybody else in there.

A: Correct.... I point at the table, tell Officer Bricker - - because that=s a small table here. There was a - - some - - the baggies, paraphernalia and the gun was sitting on top of the small table. I yell at him to grab the gun. He grabs the gun. (Emphasis added)

Officer Mata also identified the crack cocaine which Officer Mata put into his pocket until Officer Carroll arrived. Officer Mata watched the field test which showed Apositive for cocaine.@ Officer Mata also identified the Taurus semiautomatic .380 caliber handgun which was on the counter with the drugs and other paraphernalia. Officer Mata testified that, after talking to the female who was in the apartment, he released her. Officer Mata said that he got into the squad car with appellant and that, as he was filling out the Abook-in sheet,@ appellant asked him a question. At this point, appellant=s lawyer objected to Aany statement@ that appellant made while he was in custody. Relevant portions of Officer Mata=s testimony read as shown:

Q: Was - - was the statement he made to you, was that in response to a question, or did he just start talking?

A: No, he asked me a question.

* * *

Q: Okay. What was that question?

 

A: Like I said, I was filling out the book-in sheet. The book-in sheet is vital information where you put your charges that the person is arrested for. He asked me what he was being charged with. I said possession of crack cocaine. He said, AWell, I=m not - - I=m not charged for that gun.@ And I said AI don=t know.@ He goes, AWell, the gun=s not mine. I knew it was in the apartment, but the gun=s not mine. At that time, I charged him with the gun.

Q: Why did you decide, based on that statement, to charge him with the gun?

A: Because once we did - - well, actually not at that exact time. I did a [computer check] to see if he had any prior felony convictions. Upon learning that he did have a prior felony conviction, I charged him with possession of firearm. A person who is - - has prior felony convictions is not allowed to be in possession of a firearm on his person [even in his residence within five years after release from confinement or supervision]. After the statement that he made knowing that it was in the residence that I believed was his, then I charged him with UPF, which is unlawful possession of a firearm by a felon. (Emphasis added)

Officer Mata then testified that the weapon was a useable, working firearm and that it was loaded with ten live rounds. During cross-examination by appellant=s attorney, Officer Mata said that he did not know who was the Alegal owner@ of the apartment where the gun was found and that he did not see any lease agreement. When appellant=s attorney asked if there was Aany other basis for his arrest,@ other than the fact that appellant said that he knew the gun was in the apartment, Officer Mata answered: ABecause the girlfriend that was in there said it was his apartment.@ Officer Mata agreed with appellant=s lawyer that the officer would not have charged appellant with possession of the gun Aprior to his admission@ that he knew the gun was in the apartment. Officer Mata testified that he did not charge the Agirlfriend@ because he did not believe that she was a resident of the apartment where the gun and drugs were found. She had another address which Officer Mata verified. On redirect examination, Officer Mata testified that appellant did not knock on the door before he went into the apartment; he just Aturned the knob and ran in.@ Appellant passed five other apartments before he went into the apartment where the Agirlfriend@ was waiting. The third witness, Anne Weaver, testified that she is a senior forensic chemist in the drug analysis section of the Southwest Institute of Forensic Sciences. She testified that the material found at the time of appellant=s arrest was cocaine and that the total weight of the material was 14.6 grams.

 

The State=s final witness, Officer Anthony Gipson of the Dallas Police Department, testified as an expert witness about the effect of cocaine on a person; he also said that 14 grams of cocaine would Agive you about 140 uses.@ Officer Gipson expressed the opinion that Athat=s a lot of uses for one person to be possessing at one time unless they=re planning to sell them.@ Officer Gipson also testified that the Astreet value@ of a tenth of a gram of cocaine was $10 and that the Astreet value of 14.6 grams@ would be about $1,460. Officer Gipson said that it was his opinion that this amount of cocaine was Apossessed with intent to deliver, not for personal use.@

After the State rested, there were two witnesses who were called by appellant=s attorney. The first witness was Lily Anderson. She testified that appellant was her Afiancé@ and that she was with him on September 5 at the time of his arrest. Anderson testified that the two of them went to the apartment complex to check on appellant=s grandfather, that the grandfather lived on the ground floor of that apartment complex, and that they went upstairs to get him some beer. Anderson testified that appellant did not live in the apartment where he was arrested. She did not know who lived there, but she said that a man and woman were there. They went to get beer for appellant=s grandfather. She waited in the apartment while appellant went downstairs to tell his grandfather that Athey had to go get the beer.@ Anderson said that appellant came back to the upstairs apartment, that he locked the door, and that the Apolice busted the door open.@ Anderson testified that appellant did not have any drugs and that the police Anever asked@ her for any information. Anderson also testified that she never told the police that appellant lived in the apartment where he was arrested. Anderson testified that she did not see Aa weapon@ and that she did not see any drugs in the apartment.

 

Appellant was the next witness, and he testified to the same version of events as given by Anderson. Appellant specifically denied that he had ever lived in the apartment where he was arrested. Appellant said that he went to the apartment because his grandfather had sent him there because Athat=s where the bootleg was.@ The people who were there told appellant that they would have to go to get the beer, and they asked them to watch the apartment. Appellant said that Anderson waited in the apartment while he went downstairs to tell his grandfather the reason for the delay and that, when he went back upstairs to the apartment where his Awife@ was waiting, he locked the door. Appellant testified Athat=s when the laws came, just kicked down the door,@ grabbed him, and threw him down. Appellant testified that he did not have any drugs, that he did not see any drugs in the apartment, and that he did not know there was a gun in the apartment. Appellant denied the claim that he told the officer that he knew the gun was in the apartment. During cross-examination, appellant said that he was not a Adrug dealer.@ He did admit to two felony convictions in 1995 for possession of marihuana and another conviction in 1998 for possession of cocaine Awith intent to deliver.@ Appellant testified that he was 23 years old and that he had all of his money with him because he Adon=t trust nobody else@ with his money. Appellant claimed that the police planted the marihuana and crack on him and that the police were lying about what had happened.

After appellant=s attorney rested, the State recalled the first two police officers who had testified. Officer Mata testified that they did not kick in the door of the apartment and that he saw the bag in appellant=s hand. Officer McDonnold testified that the door was not kicked in and that he saw Officer Mata and appellant go into the apartment Aat the same time.@

Warrantless Arrest and Search

First, we note that, if the testimony of appellant and Anderson is believed, appellant would not have had a Areasonable expectation of privacy@ in the apartment; therefore, he would not have had standing to complain of the warrantless search of the apartment. See, e.g., Minnesota v. Carter, 525 U.S. 83, 90 (1998).

Assuming that appellant had standing to complain of the warrantless search of the apartment, we note that both the U.S. CONST. amend. IV and the TEX. CONST. art. I, ' 9 protect the citizens of this nation and of this State from Aunreasonable@ searches and seizures. See and compare Johnson v. State, 912 S.W.2d 227, 232, 235-36 (Tex.Cr.App.1995). Police officers are permitted to approach a citizen in order to ask questions or even to request a consent to search. Terry v. Ohio, 392 U.S. 1, 31 (1968). Appellant=s act in running from the uniformed police officers who were on foot patrol in a Ahigh crime area@ was sufficient to justify a ATerry@stop. See and compare Illinois v. Wardlow, 528 U.S. 119, 123 (2000); Rhodes v. State, 945 S.W.2d 115, 117 (Tex.Cr.App.1997), cert. den=d, 522 U.S. 894 (1997).

 

When he saw the contraband in appellant=s hand, Officer Mata was authorized to make a warrantless arrest under TEX. CODE CRIM. PRO. ANN. arts. 14.01(b) & 14.03 (Vernon 1977 & Supp. 2002). In reviewing the trial court=s rulings on motions to suppress evidence, an appellate court will review the Atrial court=s determination of historical facts@ by looking at the evidence in a Alight most favorable to the trial court=s ruling.@ Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Cr.App.2000). Issues Nos. I, II, and III are overruled.

Appellant=s Oral Statement

The evidence quoted above from Officer Mata=s testimony supports the trial court=s ruling that appellant=s inculpatory statement about the gun was not the product of custodial interrogation. See Carmouche v. State, supra. Consequently, there is no violation of either Miranda v. Arizona, 384 U.S. 436, 444 (1966), or of TEX. CODE CRIM. PRO. ANN. art. 38.22 (Vernon 1979 & Supp. 2002). Issue No. IV is overruled.

Possession of Firearm

Appellant argues in Issue No. V that Athe evidence was insufficient@ to prove that he Apossessed the firearm.@ Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Cr.App.1998), state the test which is used to determine the sufficiency of the evidence. That test requires an appellate court to consider all of the evidence in the light most favorable to the jury=s verdict and to affirm the conviction if Aany rational fact finder could have found beyond a reasonable doubt@ those elements of the offense which are challenged by the appeal. Jackson v. Virginia, supra at 319; Whitaker v. State, supra at 598. In order to prove the unlawful possession of the firearm, the State can rely upon circumstantial evidence to prove that appellant was in possession of the firearm which was found in the apartment. See and compare Martinez v. State, 786 S.W.2d 82, 84 (Tex.App. - San Antonio 1990, no pet=n). The jury was free to reject the testimony of appellant and Anderson. The evidence from Officer Mata shows that appellant went without knocking into the apartment where Anderson was waiting for him.[4] The baggies in the apartment were identical to the bagggies found upon appellant at the time of his arrest. The money and the drugs found upon appellant at the time of his arrest were circumstantial proof that he was selling drugs. The drugs, drug paraphernalia, and the loaded gun in the apartment were together in plain view; guns are often used to protect drugs and cash. This circumstantial evidence supports the jury=s finding that appellant was in possession of the gun. Issue No. V is overruled.

 

Officer Gipson=s Testimony

Appellant argues in Issue No. VI that the trial court erred in overruling his objection to Officer Gipson=s testimony. Officer Gipson had testified that he was familiar with the controlled substance known as cocaine, particularly crack cocaine. The reporter=s record shows the following questions, answers, objections, and rulings:

Q: Okay. What kind of effects I guess does it have on people?

A: Well, the initial effect is an almost instantaneous euphoria after smoking.

[DEFENSE COUNSEL]: Excuse me, sir. Judge, I would object. Since Detective Gipson is not a fact witness, we would object as to relevance. Since he=s not a fact witness, we would object as to relevance.

THE COURT: I=m going to overrule you.

[DEFENSE COUNSEL]: Thank you, sir.

A: I=m sorry. The - - after you smoke the piece of crack cocaine, initially, you get a very euphoric feeling. It=s a very addictive feeling because there=s no physical addiction associated with cocaine. It=s all psychological. But the feeling is very pleasurable.

[DEFENSE COUNSEL]: Excuse me, Detective Gipson. Judge, we would object as to his testimony with respect to the effects of cocaine on a person unless the State qualifies him as an expert in this area.

THE COURT: I=m going to overrule you, admit it.

[DEFENSE COUNSEL]: Thank you, sir.

A: The initial good feeling only lasts anywhere from about 25 minutes to an hour. At that time, you=re still in - - after that amount of time, you=re still impaired. However, your desire to use more cocaine is probably going to return after that amount of time. And that=s really the hook of crack cocaine is that initial good feeling that lasts anywhere from about 25 minutes to an hour.

 

After that discussion, Officer Gipson testified about the narcotics paraphernalia and how the cocaine was cut and put into single dosage baggies. He then gave his expert opinion that, Afrom the shear quantity alone,@ the cocaine was Apossessed with the intent to deliver.@ Officer Gipson said that, when the other factors were considered, Athe baggies, a scale, the cash,@ it bolstered his opinion that the cocaine was Apossessed with intent to deliver, not for personal use.@

TEX.R.EVID. 401 defines Arelevant evidence.@ TEX.R.EVID. 402 provides that relevant evidence is generally admissible. TEX.R.EVID. 403 provides that relevant evidence Amay be excluded@ if its probative value is substantially outweighed by the danger of unfair prejudice. TEX.R.EVID. 404 provides that Acharacter evidence@ is not admissible to prove conduct. These rules were discussed by the Court of Criminal Appeals in Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Cr.App.1991), where the court makes it clear that appellate courts are to Auphold the trial court=s ruling@ on evidentiary objections unless there is an Aabuse of discretion.@ This testimony was relevant to show Officer Gipson=s knowledge and experience as an expert witness. Appellant has not shown an abuse of discretion by the trial court. Issue No. VI is overruled.

Deadly Weapon Finding in Drug Case

Appellant argues in Issue No. VII that the trial court Aerred in entering a deadly weapon finding@ in the drug case. There is circumstantial evidence to support the jury=s finding that the deadly weapon was used to protect the money and the large quantity of cocaine which appellant possessed Awith intent to deliver.@ See and compare: McCain v. State, 22 S.W.3d 497, 502-03 (Tex.Cr.App. 2000); Gale v. State, 998 S.W.2d 221, 225 (Tex.Cr.App.1999); Patterson v. State, 769 S.W.2d 938, 942 (Tex.Cr.App.1989). Issue No. VII is overruled.

This Court=s Ruling

The judgments of the trial court are affirmed.

BOB DICKENSON

SENIOR JUSTICE

June 27, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

McCall, J., and Dickenson, S.J.[5]

 

[1]Appellant entered a plea of Atrue@ to the enhancement allegation in both indictments.

[2]Cause No. F00-53253-WSW in the 363rd District Court of Dallas County and No. 11-01-00115-CR in this court.

[3]Cause No. F00-53254-WSW in the 363rd District Court of Dallas County and No. 11-01-00114-CR in this court.

[4]Anderson was either appellant=s Awife@ (his testimony), his Agirlfriend@(Officer Mata=s testimony), or his Afiancé@ (her testimony).

[5]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.