Damon Detroy Council v. The State of Texas--Appeal from 82nd District Court of Robertson County

IN THE

TENTH COURT OF APPEALS

No. 10-94-213-CR

DAMON DETROY COUNCIL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 82nd District Court

Robertson County, Texas

Trial Court # 94-03-15,543-CR

O P I N I O N

Damon Council appeals from a conviction for possession of a controlled substance (cocaine), urging three points of error. Point one asserts that the evidence is insufficient to support the conviction. In point two, Council complains of the court's refusal to require the disclosure of the confidential informant's identity; and in point three, he claims that an incomplete statement of facts violates his right to due process. We will affirm.

Based upon evidence from a confidential informant (CI), police officers obtained a search warrant for the residence of Karen Washington, Council's girlfriend. Council also lived at the apartment. // The affidavit supporting the search warrant alleged that Council, Washington and "any unknown name persons present" were suspected of possessing cocaine. The CI had reported to the affiant that, within the preceding twenty-four hours, he had been at the residence and observed a quantity of cocaine. The affiant also stated in his affidavit that he had received information from the CI on several previous occasions concerning narcotics violators, and that on each occasion the information was proven to be true and correct.

Upon arrival at the apartment, the officers observed one man standing on the front porch with the door open. The officers went inside the apartment, identified Council, and informed him that they were executing a narcotics search warrant on the residence. In the master bedroom, the officers discovered a cookie tin on the dresser that contained eight rocks of crack cocaine. They also found a note on the bed that read: "Damon, save me a couple of joints so I can try to get Chris to wave my hair when I get off work . . . ."

In the front bedroom, the officers found a chili powder bottle and a match box containing a total of twenty-seven rocks of crack cocaine and a Ziplock baggie containing marihuana, all of which were in a box of Christmas ornaments. Officers also seized a crack pipe and an automatic pistol in the living area, and a supply of plastic baggies, commonly used for packaging cocaine or marihuana, in the kitchen.

The grand jury indicted Council for possession with intent to deliver a controlled substance, but the jury found him guilty only of the lesser-included offense of possession. He was sentenced to fifteen years of prison.

SUFFICIENCY OF THE EVIDENCE

In reviewing a claim of insufficient evidence, the reviewing court must determine whether, after viewing the evidence in the light most favorable to the verdict, 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, 318-19, 99 S.Ct 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). The standard is the same for both direct and circumstantial evidence. Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992), cert. denied, U.S. , 113 S. Ct. 1819, 123 L. Ed. 2d 449 (1993).

A defendant must exercise care, custody, control, and management over illicit drugs, knowing them to be drugs, before he is guilty of their possession. Dickey v. State, 693 S.W.2d 386, 389 (Tex. Crim. App. 1984). Council claims there was no evidence of possession, other than his living at the residence, and that there were numerous other "reasonable hypotheses" which prevented a conclusion that he possessed the drugs.

The "reasonable hypothesis analysis" in circumstantial-evidence cases has been rejected. Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991). Although the need to affirmatively link contraband to a defendant in a circumstantial case has been questioned following Geesa, we have held that it is a convenient and logically sound method of applying the Jackson standard in circumstantial-evidence cases. See Collins v. State, No. 10-94-119-CR (Tex. App. Waco, Dec. 14, 1994, pet. filed); Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89; Matson, 819 S.W.2d at 843; and Dickey, 693 S.W.2d at 389.

The evidence, albeit circumstantial, is sufficient to support Council's conviction. Many facts affirmatively link him to the cocaine and support an implied finding that he did exercise care, custody, control, and management over a substance that he knew to be cocaine. He shared the apartment with his girlfriend and presumably had access to all its rooms. The drugs were not hidden in a place likely to go unnoticed by Council. The cookie tin containing some of the cocaine was on the dresser in the master bedroom where he slept. In fact, Washington had left a note on the bed in the master bedroom asking him to save some "joints" for her. The note is evidence of Council's knowledge of the presence of drugs in the apartment. He also testified that Washington had instructed him not to allow anyone in their bedroom. The marihuana confiscated by the officers most likely the subject of the note was located in a box of Christmas ornaments along with more cocaine. A rational jury could reasonably conclude that Council knew of the cocaine in the master bedroom where he slept, as well as the cocaine in the Christmas box. In fact, during trial Council admitted to being the "man of the house" and knowing that the cocaine was in "his house."

Point one is overruled.

IDENTITY OF CONFIDENTIAL INFORMANT

The state has a privilege to refuse to disclose the identity of a confidential informant. Tex. R. Crim. Evid. 508(a). Three exceptions to the privilege exist: (1) the informer voluntarily discloses his identity or appears as a witness for the state; (2) the informer may be able to give testimony necessary to a fair determination of guilt or innocence; or (3) evidence from the informer is relied upon to establish the legality of obtaining evidence. Id. 508(c).

At trial, the only justification Council gave for revealing the identity of the CI was the following:

Judge, I would like to request that the informant's identity be disclosed due to the fact that we have no way of knowing what type of credible evidence has been given in the past, we have no way of finding out if there's any motive behind the giving of the information . . . . Therefore, I question the motives of that CI to come forward with this information, and request to have that identity for the purpose of the motive of the confidential informant.

He did not request the disclosure of the identity based upon any one of the three available exceptions. //

However, the court conducted an in-camera hearing before ruling as follows:

[T]he court is not going to require the State to identify the informant, because after an examination, which I feel was sufficiently thorough to conclude that this particular informant is really not in possession of information that would be material to the defense on any defensive issue that I can see, and for the offense concerned, for the protection of this particular individual, and in furtherance and in protection of the public interest involved, the Court is not going to require the State to disclose the identity of the informant.

The court further ruled that probable cause existed to support the issuance of the search warrant based upon the confidential informant's communications.

Council's rationale for requiring disclosure is not recognized by Rule 508(c). See id. As already noted, he did not urge at trial any one of the three exceptions enumerated in Rule 508(c) to support his request for disclosure of the informant's identity. See id. Therefore, he may not raise them now. See Tex. R. App. P. 52(a). Point two is overruled.

INCOMPLETE RECORD ON APPEAL

In his final point, Council argues that his right to due process was violated because the record at trial was not complete, citing the omission of three bench conferences from the statement of facts. He claims that, because those bench conferences were not recorded, he was unable to preserve error for appellate review. See id. Although he refers to, without citing, the appellate rule concerning lost or destroyed records, he does not contend that records were lost or destroyed. See Tex. R. App. P. 50(e). Rather, he argues that a record of the bench conferences were never made. Rule 50(e) is therefore inapplicable.

The duty of a court reporter to be present and record the evidence, objections, rulings, and remarks depends upon a request to do so by the judge or any party to the case. See Tex. R. App. P. 11(a). Nowhere in the record does a request appear for the court reporter to take down the proceedings, oral or written, by the judge or any party. Failure to record proceedings, when there is no request, presents no error. See Emery v. State, 800 S.W.2d 530, 535 (Tex. Crim. App. 1990). Point three is overruled.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 9, 1995

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