Cameron Sherod McDaniel v. The State of Texas--Appeal from 203rd District Court of Dallas County

Opinion filed June 14, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00276-CR

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   CAMERON SHEROD MCDANIEL, Appellant

V.

STATE OF TEXAS, Appellee

______________________________________________________________________________

On Appeal from the 203rd District Court

Dallas County, Texas

Trial Court Cause No. F-0351230-MP

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O P I N I O N

The jury convicted Cameron Sherod McDaniel of possession with intent to deliver cocaine in an amount of four grams or more but less than 200 grams. Appellant pleaded true to an enhancement paragraph alleging a prior felony conviction, and the court found that enhancement paragraph to be true. The trial court assessed punishment at thirty-five years confinement. We affirm.

In three points of error, appellant argues that the evidence is both legally and factually insufficient to support his conviction and that the trial court erred in denying his motion to suppress.

On the evening of May 4, 2003, Officer Lorne Ahrens, Officer Starr, and Officer Jason Christopher Jarc were on patrol in southeast Dallas. Officer Starr knew that people were selling drugs at a vacant house at 2224 Cooper Street. Around 9:40 p.m., the officers hid in some bushes behind the house. Over a twenty-minute period, the officers observed eight individuals approach the back window and then leave in less than one minute. Officer Jarc testified that, in his years of experience as a police officer, he had witnessed many drug transactions and that what he and the other officers observed that evening was consistent with drug activity.

After seeing the eight people come and go from the house, the officers approached the next buyer at the window. They asked the buyer to get down on the ground, and they waited at the window until the person in the house, appellant, approached. When appellant got to the window, the officers yelled, APolice, Police!@ Appellant ran toward the front of the house. The officers called for backup officers, who were waiting around the corner. Officer Jarc stayed at the back of the house, and Officer Ahrens and Officer Starr went to the front of the house with the backup officers. Appellant ran to the back of the house with a pistol cradled in his right hand. Officer Jarc shined a flashlight on appellant and yelled, APolice.@ Appellant slammed the back door shut. The two officers tried to push the door open. Appellant let go of the door and ran back through the house. The officers entered the house, and Officer Jarc picked up the gun that appellant had been holding in his hand before. The gun was lying on the ground near the door. It was later determined that the gun, a .38 caliber pistol, was loaded with five rounds of ammunition.[1]

Officer Ahrens continued running after appellant and caught up with him near the front of the house. Officer Jarc was following Officer Ahrens. Officer Jarc saw appellant make a motion with his arm and then saw a bag fly; the contents of that baggie was later determined to be crack cocaine. Appellant and the other officers physically struggled until additional officers came in to subdue appellant and arrest him. The officers searched the house and found that the only furniture in the house was a couch and a table. An SKS assault rifle was found near the front door. The officers retrieved a small baggie of marihuana and $1,057 in cash from appellant=s person. The officers found three other individuals in the house, and they were all arrested.

Other bags of both crack cocaine and marihuana were found on the table, but appellant was not charged with possession of those drugs. The bags came in three different colors B clear, green, and yellow. The green bags contained the smallest amount of crack cocaine being sold at that location, the clear bags contained the next level of amount, and the yellow bags contained even a larger amount. Officer Barry W. Ragsdale, an officer with the Dallas Police Department for over fifteen years, with ten of those years in the narcotics division, testified that it was not uncommon to find guns inside of drug houses because they were used by dealers for both protection and intimidation against other drug dealers and law enforcement. He further testified that it was common for drug houses to be virtually vacant and that the different size crack cocaine rocks separated into the different colored bags indicated that appellant had gone through a tedious process to divide his product for three different price levels.

Officer Ragsdale estimated that the thirty-two grams of cocaine seized from appellant had a street value of around $3,200. Officer Ragsdale testified that based on his experience and given the evidence and circumstances at the house B the amount of drugs and money found in appellant=s possession, the way the drugs were packaged, the presence of firearms, the fact that appellant was in a vacant house, and the numerous individuals walking up to the back of the house for about one minute before leaving B appellant possessed the drugs with intent to deliver them.

Appellant testified at trial that, on the day in question, he had gone to the house on Cooper Street to buy marihuana from his friend, Andre Holmes. Appellant testified that he bought two sacks of marihuana from Holmes and that they then smoked marihuana together in the front of the house on the couch. Appellant testified that people were coming to the back of the house to buy drugs, that he did not sell any himself, and that the Cooper Street house was not his house. He further stated that, before the evening of his arrest, he had never known about or been to that location. Appellant testified that, fifteen or twenty minutes after he had been sitting with Holmes, they heard a Aboom, boom@ sound at the front door and then kicking sounds. Appellant testified that he ran to the back of the house and someone was kicking on that door. Several people in the house held the door shut for a short time. Appellant testified that he was Ablanking out@ and that, when he looked around, everyone was gone. Appellant then ran from the door, and Officer Jarc came in, caught up with him, grabbed him, hit him on the head, and brought appellant to the ground.

Appellant testified that he did not have a gun, that he did not throw any dope, and that he did not have a thousand dollars in his pocket. Appellant further testified that he was convicted twice for possession of crack cocaine with intent to deliver. One year before the arrest in this case, appellant had been released from the penitentiary for a manslaughter conviction. Appellant testified that he should have been convicted of a lesser charge since he was only there to buy marihuana.

The State called Holmes as a rebuttal witness. Holmes testified that appellant had told him to come to the new house that appellant had just moved into on Cooper Street. Holmes testified that he was visiting appellant when the police showed up. When the police came in the house, Holmes followed their commands to get down. He heard sounds as the officers tried to detain appellant. Holmes testified that, when the police asked who the drugs belonged to, appellant said, AIt is mine, it=s mine.@ Holmes testified that, contrary to appellant=s testimony, he did not attempt to flee through the back door or to keep the police from coming in the back door.

Appellant=s wife testified that appellant had lived with her on Cedar Run Drive and, prior to that, with his mother on a street called Bonnie View. Neither address was the Cooper Street location. Further, on the Dallas County Jail book-in sheet, State=s Exhibit No. 10, appellant listed his address on Bonnie View.

In his first point, appellant argues that Officer Jarc violated his Fourth Amendment right against unreasonable search and seizures because the search was made without a warrant or probable cause. The State responds that appellant lacked standing because there is no evidence that he owned the house in which the drugs were found.

A trial court=s denial of a motion to suppress is reviewed for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). In reviewing a trial court=s ruling on a motion to suppress, appellate courts must give great deference to the trial court=s findings of historical facts as long as the record supports the findings. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). Because the trial court is the exclusive fact-finder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court=s ruling. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We also give deference to the trial court=s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court=s actions de novo. Id.; Davila v. State, 4 S.W.3d 844 (Tex. App.CEastland 1999, no pet.).

When the trial court does not make explicit findings of fact, we review the evidence in the light most favorable to the trial court=s ruling and assume that the trial court made findings that are supported by the record and that buttress its conclusion. See Torres, 182 S.W.3d at 902; Carmouche, 10 S.W.3d at 327-28. We are obligated to uphold the trial court=s ruling on appellant=s motion to suppress if that ruling was supported by the record and was correct under any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).

We must first determine whether appellant has standing to contest the search. An accused has standing to contest a search under the Fourth Amendment only if he has a legitimate expectation of privacy in the place searched. Rakas v. Illinois, 439 U.S. 128 (1978); Granados v. State, 85 S.W.3d 217, 222-23 (Tex. Crim. App. 2002). The defendant bears the burden of establishing that he had a subjective expectation of privacy in the place searched that society recognizes as reasonable. Granados, 85 S.W.3d at 223. Several factors are relevant to this latter determination of whether a given claim of privacy is objectively reasonable: (1) whether the accused had a property or possessory interest in the place invaded; (2) whether he was legitimately in the place invaded; (3) whether he had complete dominion or control and the right to exclude others; (4) whether, prior to the intrusion, he took normal precautions customarily taken by those seeking privacy; (5) whether he put the place to some private use; and (6) whether his claim of privacy was consistent with historical notions of privacy. Id. This list of factors is non-exhaustive, and no one factor alone is dispositive of a legitimate expectation of privacy. Id.

Here, appellant testified that he did not live at the Cooper Street house and that he went there to buy marihuana. Although Holmes testified that appellant told him that he had moved there, there was no other evidence presented to show that the house was appellant=s residence. Appellant=s address on the book-in sheet was consistent with his wife=s testimony that he lived with her and that he had lived with his mother previous to that. This testimony undermined any assertion that appellant had any property or possessory interest in the Cooper Street house and, likewise, that appellant had any right to exercise dominion and could exclude others.

Further, the circumstances at the time the police arrived indicate that appellant was not using the location as his personal residence. The lack of furniture and the frequent drug transactions indicate that appellant and the other individuals were using the residence for illegal drug activity.

Appellant=s use of the residence fails to meet the Granados factors. Accordingly, he lacks standing to assert a Fourth Amendment claim in this case. See Edwards v. State, 850 S.W.2d 731, 735 (Tex. App.CEl Paso 1993, no pet.) (holding that, under the facts presented, defendant lacked standing to challenge alleged unreasonable search of house in which he did not live); Gipson v. State, Nos. 05-01-00770-CR, 05-01-00771-CR, 05-01-00772-CR, and 05-01-00773-CR, 2003 WL 21053918, at *2 (Tex. App.CDallas May 12, 2003, no pet.) (not designated for publication) (holding defendant lacked standing when there was no evidence in the record that he had a property or possessory interest in, or unrestricted access to the residence; no evidence that defendant had dominion or control over the residence or the right to exclude others; and no evidence that defendant had stayed overnight or intended to stay overnight). We overrule this point.

To determine if the evidence is legally sufficient, we must review all of the 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. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414-15, 417 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15, 417; Johnson, 23 S.W.3d at 10-11. The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses= testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979).

The Alinks@ rule is not an independent test for legal sufficiency but merely a shorthand catchphrase for the myriad variety of circumstantial evidence that may establish knowing Apossession@ or Acontrol, management, or care@ of contraband. Evans v. State, 202 S.W.3d 158, 161-62 n.9 (Tex. Crim. App. 2006). A non-exclusive list of factors that may circumstantially establish the legal sufficiency of the evidence to prove a knowing possession include the following: (1) the defendant=s presence when a search was conducted; (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 narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics 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 contraband; (10) whether other contraband or drug paraphernalia was present; (11) whether the defendant owned or had the right to possess the place where the contraband was found; (12) whether the place where the contraband was found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt. Id. at 162 n.12.

Appellant was arrested in a vacant house, not his residence, where numerous transactions for the sale of crack cocaine had taken place under the surveillance of police officers. There were firearms in the house. The police found a large amount of money on appellant. The police found meticulously packaged drugs on the table next to where he was arrested. Appellant does not attack any proof regarding an element of the offense; he attacks the credibility of Officer Jarc=s testimony. Appellant questions Officer Jarc=s ability to see whether appellant had thrown the contraband. Both Officer Jarc and Officer Ahrens testified that appellant threw a bag of cocaine while running from the officers. Appellant denies any connection to the cocaine. The jury believed the testimony of Officer Jarc, and his testimony supports appellant=s conviction. Further, there was corroborating testimony from Officer Ahrens; either officer=s testimony was legally sufficient to support the jury=s verdict. See Mason v. State, 99 S.W.3d 652, 657 (Tex. App.CEastland 2003, pet. ref=d); Terrell v. State, 949 S.W.2d 49, 51 (Tex. App.CTexarkana 1997, no pet.); Nelms v. State, 834 S.W.2d 110 (Tex. App. CHouston [1st Dist.] 1992, pet. ref=d). After reviewing the evidence in the light most favorable to the jury=s verdict, we hold that it was legally sufficient to support the conviction.

Lastly, appellant argues that the evidence is factually insufficient to support a conviction because the evidence presented at trial did not show appellant=s intent to deliver cocaine. Intent to deliver may be proved by circumstantial evidence, including evidence surrounding its possession. Ingram v. State, 124 S.W.3d 672, 676 (Tex. App.CEastland 2003, no pet.). Inferences can be made from the conduct of the defendant as well as the amount of the controlled substance possessed and the manner in which it was possessed. Id.; Rhodes v. State, 913 S.W.2d 242 (Tex. App.CFort Worth 1995), aff=d, 945 S.W.2d 115 (Tex. Crim. App. 1997); Puente v. State, 888 S.W.2d 521 (Tex. App.CSan Antonio 1994, no pet.). Courts have considered several factors in determining intent, including the following: (1) the nature of the location where the defendant was arrested; (2) the quantity of drugs the defendant possessed; (3) the manner of packaging of the drugs; (4) the presence or absence of drug paraphernalia (for use or sale); (5) whether the defendant possessed a large amount of cash in addition to the drugs; and (6) the defendant=s status as a drug user. Jordan v. State, 139 S.W.3d 723, 726 (Tex. App.CFort Worth 2004, no pet.). Intent is a question of fact and must be determined by the trier of fact. Ingram, 124 S.W.3d at 676.

Officer Jarc testified that, while observing the vacant house on Cooper Street, he witnessed several drug transactions taking place at the back of the house. When Officer Jarc approached the house and shined the flashlight inside, the person he saw was appellant. Once inside, Officer Jarc saw appellant throw a baggie of crack cocaine while running from the officers, and Officer Jarc identified the same baggie in court. Officer Ahrens testified that he saw appellant throw the baggie. Officer Ragsdale testified that the circumstances at the house indicated it was a drug house and, in fact, that the drug being packaged there was crack cocaine. See Guy v. State, 160 S.W.3d 606, 611 (Tex. App.CFort Worth 2005, pet. ref=d) (evidence factually sufficient to prove defendant possessed cocaine with intent to deliver where police officer observed defendant dropping baggie of cocaine out of his hand and the officer identified the baggie in court as the same baggie he saw on the day in question; the amount of cocaine recovered constituted a dealer amount proving defendant=s intent to deliver). The jury was responsible for resolving any conflicts in the testimony and, as such, was the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).

After a review of the entire record in a neutral light, we hold that the evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust and that the verdict is not against the great weight and preponderance of the conflicting evidence. The evidence is legally and factually sufficient to support the judgment. Appellant=s second and third points of error are overruled.

The judgment is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

June 14, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]ARound@ refers to a unit of ammunition or one bullet. See Merriam Webster=s Collegiate Dictionary 1085 (11th ed. 2003).