Rickey F. Miller v. The State of Texas--Appeal from 87th District Court of Freestone County

AFFIRMED 15 NOVEMBER 1990

NO. 10-90-033-CR

Trial Court

# 89-134-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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RICKEY F. MILLER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 87th Judicial District Court

Freestone County, Texas

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O P I N I O N

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This is an appeal by defendant Miller from conviction for possession of marihuana, 200 pounds or less but more than 50 pounds, for which he was assessed 30 years in the Texas Department of Criminal Justice.

Trooper Price of the Texas DPS, while on I-45, observed an automobile with the driver not secured by a seat belt. He pursued the car and made the stop, and identified defendant as the sole occupant of the vehicle. Trooper Price asked defendant who owned the car and defendant told him that his cousin did. Trooper Price then asked for the insurance papers on the vehicle and the automobile registration papers. While Trooper Price was looking at the registration he detected the odor of unburned marihuana coming from the interior of the car. Price then asked defendant if there was anything in the trunk and if defendant would open the trunk. Defendant told Price there was only a suit bag of clothes inside the trunk, and opened the trunk. Price then detected the strong odor of unburned marihuana coming from the trunk. Trooper Price then arrested defendant for possession of marihuana, advised him of his constitutional rights; asked him how much marihuana was in the suitcases; and defendant replied, "100 pounds". While defendant was being booked into the Freestone County Jail, defendant gave the booking officer 2 marihuana cigarettes and said, "Well, I'm caught. May as well have this". Inventory of the contents of the suitcases revealed 95 pounds of marihuana; Zig-Zag rolling papers, and clothing and toilet articles belonging to defendant.

Defendant was indicted for possession of marihuana, 200 pounds or less but more than 50 pounds. After trial before the court, defendant was found guilty and sentenced to 30 years in the Institutional Division of the Texas Department of Criminal Justice.

Defendant appeals on 2 points.

Point 1 asserts "the trial court erred by convicting [defendant] on evidence insufficient to prove beyond a reasonable doubt that [defendant] possessed marihuana, 200 pounds or less but more than 50 pounds".

The standard of review is whether, viewing the evidence in the light most favorable to the prosecution, the trial court, as the trier of fact, could have found that the defendant committed the elements of the offense of possession of marihuana less than 200 pounds but more than 50 pounds. Jackson v. Virginia, US S.Ct.,99 S. Ct. 2781.

In a possession of a controlled substance case the State must prove that the defendant (1) exercised care, control, custody or management over the contraband; and (2) knew the substance was contraband. Dubry v. State, Ct.Crim.Appls, 582 S.W.2d 841. The State sustains its burden of proving the defendant knowingly and intentionally possessed the contraband by introducing facts and circumstances which affirmatively link the defendant in such a manner and to such an extent that it may be reasonably inferred that he knew of the existence of the contraband and that he exercised care, control, custody or management over the contraband. McGoldrick v. State, Ct.Crim.Appls, 682 S.W.2d 573.

The links in this case which sustain the trial court's finding of defendant's guilt are: The odor of unburned marihuana coming from the passenger area and trunk of the vehicle; the marihuana was in the suitcases in the trunk of the car; defendant was the driver and sole occupant of the car; defendant stated to Trooper Price there was 100 pounds of marihuana in the car; defendant was in possession of the 2 marihuana cigarettes on his person; defendant was in possession of drug paraphernalia, viz, Zig-Zag rolling papers; and defendant's statement to the jailer, "Well I'm caught anyway. May as well have this".

The evidence is sufficient to sustain the conviction. Point 1 is overruled.

Point 2 asserts "the trial court erred by admitting evidence procured by the State as a result of an unreasonable search and illegal seizure before denying [defendant's] pretrial motion to suppress post-trial".

Defendant contends that the admission of the evidence, i.e., 95 pounds of marihuana and oral statements, prior to ruling on his motion to suppress denied him a fair trial. The trial court has the option of hearing a pretrial motion to suppress prior to trial or waiting until an objection is made when the evidence is offered at trial on the merits. Roberts v. State, Ct.Crim.Appls, 545 S.W.2d 157.

Defendant was stopped for operating a motor vehicle without wearing a seat belt which is a violation of Texas traffic laws. Article 6701d, Sec. 107c(b), V.A.T.S. And an officer who observes the commission of a traffic offense, including the offense of a driver not wearing a seat belt, is justified in making a stop of the vehicle and contacting the driver. Armitage v. State, Ct.Crim.Appls, 637 S.W.2d 936; Rodriquez v. State, CA (Corpus Christi), 776 S.W.2d 715.

During the contact with defendant, Trooper Price detected the odor of unburned marihuana inside the car; he searched the vehicle; detected the stronger smell of unburned marihuana and found 95 pounds of marihuana in the trunk. In such circumstances the search was a legal search and evidence obtained by the search is admissible. Osban v. State, Ct.Crim.Appls, 726 S.W.2d 107; Moulden v. State, Ct.Crim.Appls, 576 S.W.2d 817.

Defendant further contends there was no true and voluntary confession to the knowledge of marihuana. Defendant stated there was 100 pounds of marihuana in the car. The statement made by defendant was admissible if (1) the statement contains assertions of facts that are found to be true and (2) the statement conduces to establish the guilt of the defendant. Baldree v. State, Ct.Crim.Appls, 784 S.W.2d 676. Here, there was 95 pounds of marihuana in the car, and the statement worked to establish the guilt of defendant by showing he intentionally and knowingly exercised care, custody, and control or management over the 95 pounds of marihuana. The statement was admissible. Moreover, the defendant waived any possible error by failing to object to the introduction of the oral statement. Green v. State, Ct.Crim.Appls, 682 S.W.2d 271.

Point 2 is overruled.

AFFIRMED

FRANK G. McDONALD

DO NOT PUBLISH Chief Justice (Retired)

[Participating: Chief Justice Thomas, Chief Justice McDonald (Retired), and Justice James (Retired)]