Cespedes, Jose Luis v. The State of Texas--Appeal from 337th District Court of Harris County

Affirmed and Opinion filed _____________, 2002

Affirmed and Memorandum Opinion filed  April 3, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00454-CR

____________

JOSE LUIS CESPEDES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

   Harris County, Texas

Trial Court Cause No. 880,973

 

M E M O R A N D U M O P I N I O N

A jury found appellant guilty of possession with intent to deliver cocaine and assessed punishment at forty years imprisonment. Appellant now contends 1) the evidence was legally and factually insufficient and 2) the trial court erred in denying his motion to suppress. The facts of this appeal are known to the parties, so we do not recite them here. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex R. App. P. 47.1. We affirm.

Legal and Factual Insufficiency

In his first two points, appellant argues the evidence was legally and factually insufficient to support his conviction. We apply the usual standards of review. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2797 (1979); Johnson v. State, 23 S.W.3d 1, 10 (Tex. Crim. App. 2000).

Possession with intent to deliver may be proven by direct or circumstantial evidence that the accused exercised care, control, or management over the substance knowing it was contraband. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). The State must affirmatively link the accused and the contraband from the totality of the circumstances, demonstrating the accused s knowledge of and control over the contraband. Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995). Texas courts have considered numerous factors, though none is necessarily determinative: the amount of contraband found, whether the amount was large enough to indicate the defendant knew of its existence, the proximity of the defendant to the contraband, whether the contraband was found in a place owned by the accused, whether the contraband was found in an enclosed space, and conduct of the accused indicating a consciousness of guilt. See, e.g., Lewis v. State, 664 S.W.2d 345, 349 (Tex. Crim. App. 1984); Dshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981); Hyett v. State, 58 S.W.3d 826, 830 (Tex. App. Houston [14th Dist.] 2001, no pet.). When examining the affirmative links, it is not the number of factors present, but the logical force they have in establishing the offense. Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App. Houston [1st Dist.] 1994, pet. ref d).

Here, Houston police officers arrested appellant after searching a vehicle in which he was a passenger and finding marijuana in a hidden compartment operated by a remote control found in appellant s pocket. They also found in his possession keys to the residence in which they recovered nearly six kilograms of cocaine from a backpack inside a van parked in the attached garage. Also found in the backpack were a checkbook with appellant s name, a traffic ticket issued to appellant in Alabama, and receipts bearing appellant s name from motels in several other states.

Further, the occupant of the residence told police the van in which the cocaine was found belonged to appellant. Although appellant argues this testimony was hearsay, he did not object at trial and thus failed to preserve error. Therefore, the officer s testimony may be considered. See Chambers v. State, 711 S.W.2d 240, 246 (Tex. Crim. App. 1986) (holding inadmissible hearsay introduced without objection possesses probative value and should be considered in determining sufficiency of the evidence).

We hold this evidence was sufficient to affirmatively link appellant to the cocaine. See Christopher v. State, 639 S.W.2d 932, 935 (Tex. Crim. App. 1982) (finding possession of a key to a location where contraband is found reasonably implies control over the contraband), overruled on other grounds by Preston v. State, 700 S.W.2d 227 (Tex. Crim. App. 1985); Cooper v. State, 852 S.W.2d 678, 681 (Tex. App. Houston [14th Dist.] 1993, pet ref d) (finding envelopes addressed to accused in apartment linked accused to contraband found nearby); see also Roberson v. State, 80 S.W.3d 730, 740 (Tex. App. Houston [14th Dist.] 2002, no pet.) (finding as the amount of contraband increases, so too does the link between the accused and the contraband). Thus, we find the evidence was legally sufficient.

As to factual sufficiency, appellant points to his specific denials that he had anything to do with the van, backpack, or cocaine. On cross-examination, the State showed that his explanations for his extensive interstate travel were something less than compelling. The jury is entitled to decide whether he was telling the truth. See Rachal v. State, 917 S.W.2d 799, 805 (Tex. Crim. App. 1996). Thus, we find the evidence was factually sufficient.

The Search

In his final two points of error, appellant argues the trial court erred in denying his motion to suppress the cocaine seized from the van. We give great deference to trial court s rulings on questions of historical fact or that turn on credibility and demeanor; we review other questions de novo. State v. Scheineman, 77 S.W.3d 810, 812 (Tex. Crim. App. 2002). Because the search in this case occurred without a warrant, the State must demonstrate a valid basis for the warrantless search. See Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002).

Appellant contends the trial court erred because (1) the State failed to establish valid third-party consent to search the van in which police found the backpack of cocaine (but not the residence itself), and (2) the alert of a trained dog did not provide probable cause because the evidence establishing the dog s training and certification in drug detection was deficient. Because the validity of the search can be resolved by examining only the latter, we will not address the former.

At trial, a police officer testified he was admitted into the house by its occupant, and appellant does not challenge this assertion. Upon entering the attached garage, a drug dog accompanying the officer alerted to a parked van, justifying the search of the van which yielded nearly six kilograms of cocaine. See Josey v. State, 981 S.W.2d 831, 846 (Tex. App. Houston [14th Dist.] 1998, pet. ref d) (finding a positive alert by a drug-sniffing dog is sufficient to establish probable cause to search). The dog s handler testified that both he and the dog had been trained and certified through the National Narcotic Detector Dog Association. There was no objection to this testimony, so any error has been waived. Having established probable cause by the dog s alert, consent to search the van was unnecessary. Therefore, we overrule appellant s final two points of error. The judgment is affirmed.

/s/ Scott Brister

Chief Justice

Judgment rendered and Opinion filed February 20, 2003.

Panel consists of Chief Justice Brister and Justice Fowler and Senior Chief Justice Murphy.[1]

Do Not Publish Tex. R. App. P. 47.2(b).

[1] Senior Chief Justice Paul C. Murphy participating by assignment.