Rogelio Miranda Baca v. The State of Texas--Appeal from 161st District Court of Ector County

Opinion filed June 1, 2006

In The

Eleventh Court of Appeals

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   No. 11-04-00021-CR

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ROGELIO MIRANDA BACA, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 161st District Court

Ector County, Texas

Trial Court Cause No. B-30,473

O P I N I O N

The jury convicted Rogelio Miranda Baca of possession of heroin, found both enhancement allegations to be true, and assessed his punishment at confinement for seventy-five years. We affirm.

Issues Presented

Appellant presents two points of error for appellate review. First, he argues that the evidence was Alegally insufficient@ to show that he knowingly possessed the heroin. Then, he argues that the trial court erred in refusing to Aprovide the identity of the State=s confidential informant@ and that this error violated his Sixth Amendment Right to confrontation.

Standard of Review

In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses= testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981), art. 38.04 (Vernon 1979). We review the fact-finder=s weighing of the evidence and cannot substitute our judgment for that of the fact-finder. Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). Due deference must be given to the fact-finder=s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000); Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996).

In cases involving unlawful possession of a controlled substance, the State must prove that the accused exercised care, control, or management over the substance and that the accused knew that the substance was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). When the accused does not have exclusive possession of the place where the contraband was recovered, the evidence must affirmatively link the accused to the contraband. Poindexter, 153 S.W.3d at 406; Brown v. State, 911 S.W.2d 744 (Tex. Crim. App. 1995); Pollan v. State, 612 S.W.2d 594 (Tex. Crim. App. 1981). The link, however, need not be so strong that it excludes every other reasonable hypothesis except the defendant=s guilt, and the evidence can be direct or circumstantial. Brown, 911 S.W.2d at 747-48.

Evidence Presented

Odessa Police Officer Jesse Duarte testified that he had been a police officer for approximately twenty years and was assigned to the narcotics division. Officer Duarte said that he had known appellant Abetween ten and twelve years,@ that he could recognize appellant on the street, and that appellant=s nickname was ARoy.@ Officer Duarte testified that he was involved in a nar-cotics investigation involving appellant which began in November 2002 based upon reports that appellant was distributing heroin in Odessa.

Appellant objected to Aany hearsay,@ and there was a discussion outside the presence of the jury. The court instructed the jury that it could not consider Officer Duarte=s statement for the truth of the matter stated Athat appellant was distributing heroin in Odessa@ but that the jury could consider the statement Ato show the reason for the officer taking the subsequent actions.@

Officer Duarte said that the police officers conducted surveillance on the house where appellant lived and that he observed known heroin addicts going to and from the house. Appellant moved from that house to an apartment, and the surveillance continued. Officer Duarte testified that he received information from an informant on December 17, 2002, that the informant had been in appellant=s apartment and had seen a Alarge quantity of heroin.@ Based upon that information, Officer Duarte testified that they secured a search warrant. Appellant and his wife were brought to the apartment while the search warrant was being executed.

Officer Duarte testified that the dog which was brought to the scene helped the police officers find heroin which was hidden under the box springs of a bed in one of the bedrooms. Officer Duarte identified the items which they found when the search warrant was executed. In addition to the heroin, there were some plastic bags, some balloons, a single-edge razor blade, and several photographs which were made at the time of the search. Officer Duarte also testified that appellant had $611 in cash in his possession at the time of his arrest for Aaggravated possession of heroin,@ that the heroin weighed about sixty grams, that this would be more than two ounces, and that the street value of heroin at that time was about $5,000 per ounce.

During his cross-examination by appellant=s attorney, Officer Duarte testified that he Awas contacted by a confidential informant@ on December 17, 2002, and that he was not willing to give appellant=s lawyer the name of the confidential informant because of security reasons. Officer Duarte said that this informant had already been threatened and that he was still using the informant to conduct other heroin investigations.

Dennis Hambrick, a chemist with the Texas Department of Public Safety, testified that the exhibit which was sent to him weighed 53.45 grams and that it contained heroin.

Odessa Police Officer Gregg Bowers testified that he was a Anarcotics detective,@ that he was assisting other officers with a narcotics investigation, that he was one of the officers who detained appellant and his wife, and that the officers brought appellant and his wife back to their apartment. His testimony was consistent with the testimony of Officer Duarte, and he also explained in more detail about how the dog assisted in locating the contraband.

Odessa Police Officer Wayne Phillips also participated in the search. Officer Phillips prepared the application for the search warrant and presented it to the municipal court judge. His testimony was consistent with the testimony of Officers Duarte and Bowers. He said that the SWAT [special weapon and tactical] officers went into the apartment first, followed by the narcotics officers and the canine officer and his dog. Officer Phillips took photographs of the scene.

Odessa Police Officer Andy Blackburn testified that his canine partner, AFlappy,@ is a Belgian Malinois; that he and the dog had Anarcotics training and tactical training@; and that the two of them participated in the execution of the search warrant at appellant=s apartment on December 17, 2002. Officer Blackburn identified the razor blade and the heroin which his dog found during their search. Officer Blackburn also explained how the dog will Asit down@ and look at his handler when the dog finds something which has the smell of narcotics and how the handler rewards the dog for his work. Officer Blackburn also testified that Flappy gave a positive response to the Abig wad of money@ which appellant had in his possession. Officer Blackburn said that Flappy found the heroin in the bottom of a mattress. Flappy stuck his nose in a hole in the dust cover on the bottom of the mattress, and the officers ripped it open and found a big quantity of heroin in the mattress.

After the State rested, Angie Baca testified that appellant was her father and that she attended Odessa High School in 2002. Audelia Quinones testified that she called appellant on his cell phone on December 17 to tell him that AAngie=s boy friend [sic] had her car.@ Elva Baca, appellant=s wife, testified that, after they got a call from Quinones, she and her husband went to Odessa High School to look for their daughter. The Odessa police officers stopped them and took them back to their apartment. Appellant=s wife testified that she had had a substance abuse problem and that she was in a methadone clinic program which includes psychological therapy. Appellant=s wife said that appellant was also involved in that program and that they are no longer using heroin.

After the court made sure that he understood that he had the right not to testify and that he would have to waive that right in order to testify, appellant testified that everybody called him ARoy@ and that he had been to the penitentiary A[t]oo many [times] to remember.@ Appellant stated that he had been to the penitentiary more than seven times because he had been a heroin addict for twenty-seven years. Appellant testified that he was Aclean now@; that he was fifty-three years old at the time of trial; that he got out of prison on parole on August 23, 2002; that he was going to AA meetings twice a week and to a special program with a psychologist for an hour once a week; and that he was taking methadone. Appellant also testified that Officer Duarte had harassed appellant and told appellant that he would see that appellant spent the rest of his life in prison.

Appellant testified that he did not know there was any heroin in his apartment and that he had never been a heroin dealer. During his cross-examination, appellant said that somebody else must have put the heroin in his apartment because he did not know it was there and that Officer Duarte was mistaken when he testified that appellant told Officer Duarte that he was Afronted@ with the heroin. Appellant also testified that he did not tell Officer Duarte not to arrest appellant=s wife because the heroin Ais just mine. It is not hers. Take me.@

Sufficiency of the Evidence

The evidence is legally sufficient to support the jury=s finding that appellant knowingly possessed the heroin which was found in his apartment. See, e.g., Flores v. State, 102 S.W.3d 328, 333-34 (Tex. App.CEastland 2003, pet. ref=d), and the cases cited therein. Point of Error No. 1 is overruled.

Right to Confrontation Claim

Appellant cites Crawford v. Washington, 541 U.S. 36 (2004), in support of his second point of error. That case was decided after the trial of the case which is now before us, and it is factually distinguishable and not controlling.

In Crawford, the defendant was convicted of stabbing a man who had allegedly raped the defendant=s wife. The police had interrogated both the defendant and his wife, and both of them gave voluntary statements. There were differences in the two tape-recorded statements which were relevant to defendant=s claim that he stabbed the alleged rapist in self-defense. The State of Washington has a statute which bars a spouse from testifying against the other spouse without consent, and the wife did not testify during her husband=s trial. The Washington trial court overruled a Ahearsay@ objection to the State=s use of the wife=s tape-recorded statement. The state supreme court relied upon Ohio v. Roberts, 448 U.S. 56 (1980), to affirm the conviction. The United States Supreme Court granted an application for writ of certiorari, reversed the conviction, and remanded the case for further proceedings.

Speaking for the Court, Justice Scalia said in Crawford, 541 U.S. at 68:[1]

Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers= design to afford the States flexibility in their development of hearsay law . . . . Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of Atestimonial.@ Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed. (footnote omitted).

We hold that the report from the confidential informant that appellant was distributing heroin in Odessa was Anontestimonial.@ There was no interrogation of the informant, and the trial court did not err in overruling appellant=s request for the name of the confidential informant. Woods v. State, 152 W.W.3d 105, 113-14 (Tex. Crim. App. 2004); Ford v. State, 179 S.W.3d 203, 208 (Tex. App.C Houston [14th Dist.] 2005, pet. ref=d).

We note that the trial court instructed the jury that it could not consider Officer Duarte=s testimony about the report from the confidential informant for the truth of the matter stated. Point of Error No. 2 is overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

BOB DICKENSON

SENIOR JUSTICE

June 1, 2006

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: McCall, J., and

Strange, J., and Dickenson, S.J.[2]

[1]Chief Justice Rehnquist, joined by Justice O=Connor, filed a separate opinion. Crawford, 541 U.S. at 69. They agreed that the conviction should be reversed, but they dissented from the decision to overrule Ohio v. Roberts.

[2]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.