JOHN RICHARD HERNANDEZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion issued April 11, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01507-CR
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JOHN RICHARD HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-45651-W
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OPINION
Before Justices Morris, Wright, and Francis
Opinion By Justice Morris
        At trial, a jury convicted John Richard Hernandez of possession of methamphetamine with intent to deliver. He complains on appeal that the trial court erred in admitting extraneous offense evidence, the evidence against him is factually insufficient, and the written judgment in his case contains errors. We modify the trial court's judgment to delete a $10,000 fine and show the correct sentencing date. As modified, we affirm the judgment.
Factual Background
        Police officers conducting surveillance of appellant watched appellant and two other men enter room 128 of a motel. One of the other men was appellant's brother, who later in the day left room 128 and stayed in room 228. Early that evening, officers observed a man and woman go into room 128. The man was carrying a stainless steel briefcase. After they entered, appellant stuck his head out of the door and “look[ed] up and down both ways of the parking lot” before going back inside the room and shutting the door. When the man and woman left approximately twenty minutes later, they were no longer carrying the briefcase. As they left, appellant again looked up and down both ends of the parking lot before going back into his room. In the testifying police officer's opinion, it appeared that appellant was checking to see if anyone was watching him.
        Officers followed the man and woman as they left the motel in a truck. After stopping the truck for a traffic violation, they obtained probable cause to search it after a drug dog alerted to something inside. Inside the truck, the officers found a “nonoperational clandestine methamphetamine lab.” The man, Gary Wayne Webster, was arrested for possession of drug paraphernalia.
        Webster testified at trial that he and his girlfriend had gone to room 128 so she could give appellant a video camera to settle some of her methamphetamine debt with him. The girlfriend had purchased methamphetamine from appellant in the past. According to Webster, when they got to room 128 and presented appellant with the video camera in the briefcase, appellant took $300 off the girlfriend's debt and gave her some more methamphetamine. Webster also claimed appellant asked him to sell methamphetamine or collect on debts for him.
        Webster admitted to having several previous criminal convictions and to being on probation for possession of a controlled substance. Webster stated that, in exchange for his testimony against appellant, he had been promised that he would not be charged with any offense related to appellant's drug offense, but he had not been promised anything more. Webster also admitted he is a methamphetamine addict.
        The same night police saw Webster and his girlfriend leave room 128, officers also pulled over a truck belonging to appellant. Appellant and his brother were inside the truck, and the third man from the motel was driving. Appellant gave officers permission to search the truck. The same drug dog also alerted to something inside and outside the truck. During the search, an officer discovered that one of the air bags for the truck had been removed and replaced with a secret compartment. The searching officer testified that, in his experience, such compartments are usually used to hide narcotics. Police confiscated appellant's truck after the search.
        Following the searches of both trucks, police obtained a search warrant for the motel room. Officers conducted surveillance of the room from the time appellant's truck was pulled over until the room was searched. Inside room 128, officers found over a kilo of methamphetamine under a bed and in a dresser, digital scales, Ziploc baggies, traffic citations in appellant's name on top of a night stand, air fresheners visibly stuck inside the air conditioning vent, a stainless steel briefcase containing a video camera, and written notes documenting what appeared to be drug sales. A police officer testified that the street value of the drugs confiscated from room 128 was approximately $150,000. According to the officer, the large amount of air fresheners stuck in the air vent was indicative of efforts to mask the strong smell of methamphetamine. No gun or money was found in the room.
        The motel manager also testified for the State. He presented evidence showing that appellant was the person registered for room 128 at the time of the search. According to the manager, appellant stayed in room 128 for thirty-three consecutive days, paying for the room in cash every week.
        Appellant was arrested a few days after the search when he arrived at an impound lot to claim his truck. During his arrest, police found a motel key card in appellant's wallet. An officer confirmed the key card was for room 128 where the search had taken place.         A narcotics officer testified that motel rooms are often used for drug distribution. According to the officer, the written notes in room 128 were indicative of drug sales by the ounce. The officer testified that it is common for methamphetamine dealers to mask the smell of the drugs with air fresheners or other masking agents. In addition, the officer testified that the amount of methamphetamine alone found in room 128 suggested that it was not for personal use. Moreover, in the narcotics officer's opinion, the scales and baggies found, the notes in the room, and the hidden compartment in appellant's truck all supported the theory that the drugs were possessed with the intent to resell.
Discussion
        In his first issue, appellant complains the trial court erred in admitting testimony about appellant possessing and distributing drugs before the date of the offense. He complains that Webster's testimony showing appellant had sold drugs to Webster's girlfriend in the past violated Texas Rule of Evidence 404(b) because it allowed the jury to consider his drug-dealer character in determining whether he had committed the charged offense in this case. He contends that without this evidence, the case against him was weak.
        We review the trial court's decision to admit the evidence of the extraneous offense under an abuse of discretion standard. See Robbins v. State, 88 S.W.3d 256, 259-60 (Tex. Crim. App. 2002). Here, the evidence of appellant's previous drug sales belied his defense that he was unaware of the large amount of methamphetamine hidden in the hotel room registered in his name. It showed his awareness of the drug and his intent to sell it. See Tex. R. Evid. 404(b). Accordingly, the trial court did not abuse its discretion in admitting the evidence. We resolve appellant's first issue against him.
        In his second issue, appellant claims the evidence against him is factually insufficient to support his conviction. He contends that Webster's testimony, which was objected to by the defense, was the only real proof of his guilt for the charged offense. In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). In conducting this review, we are permitted to substitute our judgment for the jury's on the question of witness credibility and weight of evidence determinations, “albeit to a very limited degree.” See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, -- U.S. -- , 128 S. Ct. 87 (2007). We will reverse a verdict of guilty on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. See Watston, 204 S.W.3d at 417.
        Here, even without the testimony about appellant's previous drug deals, the evidence at trial linked appellant to the methamphetamine found in room 128. See Evans v. State, 202 S.W.3d 158, 161-62 n.9 (Tex. Crim. App. 2006). More than a kilo of methamphetamine was hidden in a motel room registered to appellant and for which he had a key. Inside the room, there were traffic citations in appellant's name, drug dealing paraphernalia, notations indicative of drug sales by the ounce, and multiple air fresheners in the air conditioning vents. Appellant looked out at the parking lot as he let people in or out of room 128, as if he was checking to see if he was being watched. In addition, a drug dog alerted to the presence of drug odor on appellant's truck, and the truck contained a hidden compartment often associated with drug trafficking. All of these factors show that appellant possessed the methamphetamine and intended to sell it.
        Furthermore, we have concluded that the trial court did not err in admitting the evidence of previous drug sales. This evidence also shows appellant's knowledge of the methamphetamine in the motel room and his intent to sell it. After reviewing all the evidence, we conclude it is factually sufficient to support appellant's conviction. We resolve appellant's second issue against him.
        In his final issue, appellant contends the trial court's judgment improperly reflects a fine of $10,000 and a sentencing date of September 21, 2006. The State agrees. Both sides request that we modify the judgment to delete the fine and change the date of sentencing to September 20, 2006. No fine was assessed when the trial judge orally assessed punishment against appellant on September 20, 2006. We have the power to modify judgments where we have the necessary information to do so. See Tex. R. App. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). We therefore resolve appellant's third issue in his favor and modify the judgment to delete the fine and reflect the sentencing date as September 20, 2006. See Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998).
        We affirm the trial court's judgment as modified.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
061507F.U05