Williams, Lateef Kamaal v. The State of Texas--Appeal from 182nd District Court of Harris County

Affirmed and Opinion filed October 10, 2002

Affirmed and Opinion filed  October 10, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01250-CR

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LATEEF KAMAAL WILLIAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from 182nd District Court

Harris County, Texas

Trial Court Cause No. 880,286

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O P I N I O N

In four points of error, Lateef Kamaal Williams, appeals a conviction for possession of a controlled substance, phencyclidine (PCP), with intent to deliver. Specifically, he contends the trial court s failure to suppress the PCP violates the Fourth Amendment of the U.S. Constitution and Article I, section 9 of the Texas Constitution. He further contends that the evidence is legally and factually insufficient to support the trial court s conviction. We affirm.

 

Facts

Deputy J. M. Palermo of the Harris County Sheriff s Department stopped appellant for failure to wear a seatbelt and an expired inspection sticker. He immediately noticed appellant making fast movements and fidgeting in his car. Upon approaching the car, Deputy Palermo could see that appellant s hands were near the center console, and he could smell burnt marijuana. The deputy detained appellant in his patrol car while he performed a search of appellant s car. Inside the center console, the deputy found a vanilla extract bottle containing a fluid, later identified as PCP. Dennis Green, with the Houston Police Department crime laboratory, testified that the vanilla extract bottle contained 8.3 grams of PCP. He further testified that this amount could either be sold or used for personal consumption. Appellant alleges that he was wearing his seatbelt, the car was that of his girlfriend, and that it was not his PCP.

Motion to Suppress

In his first and second issues, appellant contends the trial court erred in overruling his motion to suppress the PCP. Specifically, he argues that the deputy had neither reasonable suspicion to stop the car nor probable cause to search it.

We review a trial court s ruling on a motion to suppress for abuse of discretion. Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993). In reviewing a trial court s ruling on a motion to suppress, we give great deference to the trial court s determination of historical facts that the record supports. Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1991). The court must afford the same amount of deference to the trial court s rulings on mixed question of law and fact, such as the issue of probable cause, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. at 89. A question turns on an evaluation of credibility and demeanor when the testimony of one or

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more witnesses, if believed, is always enough to equal what is needed to decide the substantive issue. Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998).

Appellant does not deny that driving without a seatbelt and with an expired inspection sticker provide reasonable suspicion to stop. To the contrary, it is a well-established principle that a peace officer may stop, detain, and briefly question a person for a traffic violation. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).

Appellant instead urges that he wore his seatbelt until being stopped, but that he took it off in anticipation that he would be asked to step out of the car. Additionally, he argues that the car had paper plates, which would be as good as an inspection sticker. Further, the owner of the car did testify that the sticker was expired. In contrast to appellant s testimony, Deputy Palermo testified that appellant was not wearing his seatbelt before he initiated the stop.

Thus, the trial court was faced with two different versions of the facts. Given its ruling, the trial court necessarily believed the officer s testimony and not that of appellant. In accepting the historical facts as found by the trial court, we conclude appellant was driving without a seatbelt or valid inspection sticker; thus reasonable suspicion existed to stop him. We therefore overrule appellant s first point of error.

We next address appellant s contention that Deputy Palermo lacked probable cause to search the car. The odor of marijuana alone is sufficient to establish probable cause, allowing the search of a person, car, or objects within the car. Isam v. State, 582 S.W.2d 441, 444 (Tex. Crim. App. 1979). Although no marijuana was found, Deputy Palermo smelled marijuana emanating from the car. Appellant argues that even if marijuana had been smoked in the car, the smell would have dissipated because the windows were down and fresh air blew through the car. Appellant wants us to accept his rendition of the facts. However, we are bound to review the evidence in the light most favorable to the trial court s ruling. Carmouche v. State, 10 S.W.3d 323, 327 28 (Tex. Crim. App. 2000).

Accepting the deputy s facts as true, the odor of burning marijuana provided probable cause to search the car. Accordingly, we hold the trial court did not abuse its discretion overruling appellant s motion to suppress. Appellant s second point of error is overruled.

Legal and Factual Sufficiency

In his third and fourth points of error, appellant claims the evidence is legally and factually insufficient to support the conviction, for the reason that there is not sufficient proof that he possessed the bottle containing PCP. When reviewing the legal sufficiency of the evidence, we must view the evidence in a light most favorable to the verdict and 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, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). In conducting this review, we do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).

In order to prove unlawful possession of a controlled substance, the state must show that the defendant exercised care, custody, and control of the substance, and that he knew the substance was contraband. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). Appellant argues that the state did not prove that appellant possessed the bottle containing PCP. To support this contention, appellant argues (1) the car belonged to his girlfriend; (2) the bottle was not found on his person; (3) no fingerprints were found on the bottle; and (4) there was no other drug paraphernalia found.

When the accused is not in exclusive possession of the place where the contraband is found, additional independent facts and circumstances must be shown that affirmatively link appellant to the contraband. Id. While mere presence at the scene is not sufficient to

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establish unlawful possession of a controlled substance, evidence which affirmatively links the defendant to the controlled substance will suffice to prove that he possessed it knowingly. McGoldrick v. State, 682 S.W.2d 573, 578 79 (Tex. Crim. App. 1985). The affirmative link must raise a reasonable inference that the accused knew of and controlled the contraband. Christian v. State, 686 S.W.2d 930, 932 (Tex. Crim. App. 1985). Affirmative links between a defendant and illegal drugs may include: the defendant s presence when the drugs are found; whether the drugs or other contraband were in plain view; the defendant s proximity to and the accessibility of the drugs; whether the defendant was under the influence of drugs when the drugs were found; whether the defendant possessed other contraband or drug paraphernalia; whether the defendant made incriminating statements or furtive gestures or tried to flee; whether there was any noticeable drug odor; whether the defendant had the right to possess the place where the drugs were found; and whether that place was enclosed. See Hyett v. State, 58 S.W.3d 826, 830 (Tex. App. Houston [14th Dist.] 2001, pet. ref d.); Martinets v. State, 884 S.W.2d 185, 188 (Tex. App. Austin 1994, no writ); Villarreal v. State, 865 S.W.2d 501, 503 04 (Tex. App. Corpus Christi 1993, writ ref d).

Appellant was alone when stopped and there was a noticeable odor of marijuana. His hands were near the center console of the car where the contraband was later found. He was sitting in the driver s seat in close proximity to and having easy access to the contraband. Only appellant and his girlfriend drove the car, and she testified the PCP was not hers. Furthermore, appellant s furtive behavior indicated his consciousness of guilt. The above facts provide legally sufficient evidence affirmatively linking appellant and the PCP. Accordingly we overrule appellant s third point of error.

Next appellant attacks the factual sufficiency of the evidence by arguing that Deputy Palermo lied about the smell of burnt marijuana. He claims that he was not found to be under the influence of marijuana, and that no marijuana was found in the car or on his person.

In reviewing the factual sufficiency of the evidence, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict only if 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 v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We review the fact finder s weighing of the evidence and are authorized to disagree with the fact finder s determination. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). Our review, however, must be appropriately deferential so as to avoid substituting our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

Appellant took his girlfriend to work at 8:00 a.m., and she testified that she could not smell marijuana at that time. Appellant testified that only he and his girlfriend drove the car and that neither had smoked marijuana. To support his position further, he claims that because the air conditioning was broken, the windows were down, which would have made smelling marijuana factually impossible. Again, in contrast, Deputy Palermo testified that when he stopped appellant, he could smell burnt marijuana.

The jury was the sole judge of the witnesses credibility. During his testimony, appellant acknowledged that he had six prior convictions, two of which were for delivery of a controlled substance. Although marijuana was not located in the car, the jury apparently believed the testimony of the deputy. The deputy testified that the car had cloth seats that could have trapped the scent. Appellant was arrested four hours after taking his girlfriend to work, which helps explain why she did not smell marijuana. We hold that the proof of guilt is not so obviously weak as to undermine confidence in the jury s verdict. For these reasons we overrule appellant s fourth point of error.

 

Accordingly, the judgment of the trial court is affirmed.

 

/s/ Charles W. Seymore

Justice

Judgment rendered and Opinion filed October 10, 2002.

Panel consists of Justices Edelman, Seymore and Guzman.

Do Not Publish Tex. R. App. P. 47.3(b).