05-06-00804-CR 05-06-00815-CR

AFFIRM; Opinion issued November 13, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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05-06-00803-CR
05-06-00804-CR
05-06-00815-CR
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CALVIN WAYNE SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F05-26048-ST, F05-26049-VT, and F98-67696-T
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OPINION
Before Justices Moseley, Lang, and Mazzant
Opinion By Justice Mazzant
        Calvin Wayne Smith appeals his convictions for possession of cocaine with intent to deliver,
possession of a firearm by a felon, and the revocation of his probation for the offense of aggravated assault. In five issues, he claims the evidence is factually insufficient; the trial court improperly denied his motion to suppress and failed to submit a requested article 38.23 jury instruction; and the State failed to provide notice of its intent to seek a deadly weapon finding. We affirm the trial court's judgments.
Background
        Garland police officer D.M. Morrow testified that there had been trouble with drugs, thefts, and robberies at a Motel 6 near the intersections of Broadway and Interstate 30, in Dallas, Texas. In response to requests from the motel management, officers of the Garland Police Department increased their presence in the area. As part of this stepped-up enforcement effort, Morrow would check the license plate numbers of cars in the motel parking lot to see if their owners had any warrants and then arrest the vehicles' owners if they were registered at the motel. On March 7, 2005, Morrow ran a computer search on appellant's license plate and learned he was wanted on misdemeanor warrants from Garland and Mesquite.   See Footnote 1  Morrow also learned appellant was staying in room 307 and was the only person registered to that room. Because Morrow was dealing with the arrest of another suspect, he asked Garland police officers W.J. Nies and Ed White to arrest appellant for the outstanding warrants.
        Nies and White went to room 307 accompanied by another Garland police officer, Shara Watson. After they knocked on the door, appellant opened the door, verified that his name was Calvin Smith, and acknowledged that there was a warrant from the City of Garland for his arrest. Appellant was in his underwear and looked as if he had been sleeping. He said he was alone. When Nies asked if the officers could enter the room, appellant said they could “come on in.” As appellant was standing between the two beds putting on his pants, the officers saw him use one foot in an attempt to kick or push a black bag underneath the bed.   See Footnote 2  White recalled that appellant was trying to kick the bag under the first bed, which was the bed farthest from the bathroom. When one of the officers asked appellant what he was trying to kick under the bed, appellant said “Nothing.” After appellant put on his pants, Nies handcuffed him and Watson escorted appellant out of the room. Watson patted him down but did not find anything.
        Nies retrieved the bag and opened it. Inside the bag, he saw the butt of a revolver sticking out of a purple “Crown Royal” bag. The gun was a loaded .357 handgun, and there were additional rounds of ammunition in the “Crown Royal” bag. In a separate black bag, the officers found cocaine in powder form and drug paraphernalia.   See Footnote 3  The paraphernalia included a sifter, a knife, a cord, two scales, and plastic “baggies.” There was no luggage tag or name tag on either bag and the officers found no photo identification or anything with appellant's name on it in the motel room.
        After appellant was placed in the squad car, the officers searched the room. There was no one else in the room with appellant and the officers did not find any clothes apart from those belonging to appellant. Only the second bed, the one near the bathroom, appeared to have been slept in.
        Paula Garner, a detention officer with the Garland Police Department, booked appellant into the jail, taking his property and giving him a jail uniform to wear. After appellant changed his clothes, Garner checked appellant's clothing for contraband. While going through appellant's clothes, Garner found a green bag of powder in appellant's pants. She also found twenty-six dollars and some change. Garner gave the “baggie” to Nies, who was standing nearby.         Kay Davis, a chemist with the Texas Department of Public Safety crime lab, analyzed the substances recovered from the motel room and appellant's pants pocket. The substance found in the motel room was cocaine and weighed 4.45 grams. The substance found in appellant's pants was also cocaine and weighed 0.03 grams.
        Detective David Potts of the Dallas Police Department, Narcotics Division, testified that a typical dose of powdered cocaine is 1/10th of a gram. It is usually sold on the street for ten dollars in what is called a “dime” or “dime bag.” Lower-level drug dealers will often buy a few hundred dollars worth of cocaine, add a “cutting agent” to increase the quantity of the product, and then sell the smaller quantities at street value. The powder cocaine seized from room 307, which weighed 4.45 grams, contained forty-four individual doses of cocaine and had a “street value” of $440. If a cutting agent was added, the cocaine would weigh approximately nine grams and have a “street value” of $900. Potts also recognized the drug paraphernalia seized from room 307, which included a sifter, scales, and “baggies,” as the tools of a drug enterprise. He said it is common for drug dealers to carry guns to protect themselves from people who might try to steal their drugs or their money. He also claimed the amount of drugs and drug paraphernalia seized in this case was more consistent with someone selling cocaine than using it. A drug user would not usually possess the amount of cocaine seized from room 307 because a user would normally have enough money for only one day's supply of drugs. The small amount of cash found probably meant appellant had just “re-upped” his stock.
        After the State rested, appellant testified that, in March 2005, he was working primarily for a temporary agency, Labor Ready, doing light industrial work. On March 6, 2005, he checked in at the Motel 6 at approximately 10:30 or 11:00 p.m. He paid cash and gave the motel clerk his driver's license number when he registered. Appellant claimed that a friend named “Mario” asked him to rent the motel room so they would be closer to a job location. Appellant said he rented the room and Mario met him there; both men had keys to the room. Appellant did not know Mario's last name. Once Mario arrived at the motel, appellant visited his child's mother and spent the night with her. When he returned to the motel between 7:30 and 8:00 a.m. the next morning, Mario was not in the room, but he had left a note. Appellant also noticed five beer bottles in the room.   See Footnote 4  He removed his dirty work pants before sitting on the bed to make a telephone call.
        Appellant was sitting on the bed and talking on his cellular telephone when he heard the door “rattling,” so he hung up the phone. Appellant went to the door, saw three police officers and the woman from the front desk, and opened the door slightly. Nies pushed against the door and “just kind of forced his way in the room.” When appellant asked Nies why he forced his way into the room, the officer said that if appellant had “taken care of [his] business,” he would not have had to come into the room. After he entered the room, Nies said he had a warrant for appellant's arrest for not wearing a seat belt. Appellant knew he had a traffic violation in Garland but claimed at trial that he “attempted to resolve it.”
        Nies ordered appellant to get dressed. After appellant put on his pants and shoes, Nies handcuffed him. Appellant asked what was going to happen to his personal property, such as his cellular telephone, charger, and car keys, and Nies said the officers had possession of appellant's property and would bring it to the jail.         Appellant claimed he never saw a black bag in the room and was not even aware of the black bag until he heard one of the officers say “something was wrong with the room.” Appellant also denied that he tried to kick any black bag under the bed. After the female officer took him downstairs, Morrow asked appellant if he knew anything about drugs and guns being present in the room. Appellant said he “knew nothing of it.” Morrow asked appellant if he wanted to “help [himself] out” by setting up someone to deliver drugs to the room. Appellant said he “knew nothing of it.” Appellant claimed Nies asked him the same question as they drove to the jail, but appellant said he was not interested. At the jail, Nies removed business cards from appellant's wallet and checked the telephone numbers stored on appellant's cellular telephone. As appellant was being booked into the jail, Nies told him they had found a bag containing a “substance.” Appellant said he did not want to “play games” with the officer.
        Appellant claimed he did not knowingly possess cocaine or a firearm in room 307 of the Motel 6. He also said he did not know anything about the “baggie” of drugs found in his pants. Appellant suggested the “baggie” was planted, pointing out that Watson and Nies emptied his pockets before he reached the jail. Appellant also said Mario did not have a black bag when he came to the motel room. He denied telling Nies that the black bag belonged to someone else.
        Appellant admitted that when he checked into the motel, he did not put anyone else's name on the motel registry. He said that he informed the front desk someone else would be staying in the room, but it was not written in the motel registry. Appellant also said that he agreed to rent the room for Mario because he wanted access to the room in order to meet with a female friend who was not his child's mother.         Appellant admitted he was convicted in 1993 of making a terroristic threat against a female. He did not remember being convicted in 1995 of misdemeanor assault against a female. He also admitted that he was convicted in 1999 of aggravated assault.   See Footnote 5  Appellant was on probation for this offense at the time of his arrest. He admitted using cocaine on occasion but claimed he stopped doing so a “long time” before this incident.
        On recall, Nies testified that, on the way to the jail, appellant told him the black bag belonged to a friend. Nies said he did not force his way into appellant's room when the door was opened and he did not ask appellant if he wanted to help himself out by “working off” his case as a confidential informant. Nies claimed he is not a narcotics officer and does not have the authority to make those kinds of deals. He also denied planting the “baggie” of cocaine in appellant's clothing. Nies was “110 percent” certain he saw appellant kick the black bag under the bed, but the bag was never under the bed because there was a rail preventing items from sliding under the bed.
        The jury found appellant guilty in both the drug and gun cases and answered the question concerning the deadly weapon in the affirmative. During the punishment phase, the State introduced judgments indicating appellant was previously convicted of misdemeanor assault, terroristic threats, unlawful carrying of a weapon, and driving while intoxicated. The defense presented no punishment evidence. The jury assessed punishment at eighteen years on the drug case and seven years on the gun case. The court found the allegations in the State's motion to revoke probation to be true and sentenced appellant to ten years in prison. The court ordered all sentences to be served concurrently.
Discussion
        In issues one, two, and three, appellant complains the evidence is factually insufficient to show he possessed the cocaine, the firearm, or that he possessed the cocaine with the intent to deliver it. We address each of these issues in turn.
        In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict. Id. at 417. In making a factual sufficiency review, a reviewing court is permitted to substitute its judgment for the trier of fact's when considering credibility and weight determinations but only “to a very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (explaining factual sufficiency jurisprudence still requires appellate court to afford “due deference” to trier of fact's determinations). Unless the record clearly reveals a different result is appropriate, an appellate court must defer to the trier of fact's determinations concerning what weight to give contradictory testimonial evidence. See Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
        Possession of the cocaine
        In this case, appellant was charged with the knowing possession of more than four grams but less than 200 grams   See Footnote 6  of cocaine with the intent to deliver. See Tex. Health & Safety Code Ann. § 481.112(a), (d) (Vernon 2003). To prove unlawful possession of a controlled substance, the State had to prove that the accused (1) exercised actual care, custody, control, or management over the contraband and (2) that he knew the matter possessed was contraband. See id. §§ 481.002(38), 481.112(a) (Vernon 2003); Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981); Taylor v. State, 106 S.W.3d 827, 830 (Tex. App.-Dallas 2003, no pet.). When possession is not exclusive, additional independent facts and circumstances must “link” the accused to the contraband. Deshong, 625 S.W.2d at 329; see also Evans v. State, 202 S.W.3d 158, 161 n.9 (Tex. Crim. App. 2006) (“We have used that term 'affirmative links,' but we recognize 'affirmative' adds nothing to the plain meaning of 'link.' Henceforth, we will use only 'link' so that it is clear that evidence of drug possession is judged by the same standard as all other evidence.”). The links between appellant and the contraband must be established by either direct or circumstantial evidence. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005).
        No set formula of facts exists to dictate a finding of links sufficient to support an inference of knowing possession. See Taylor, 106 S.W.3d at 830. It is the logical force of the evidence, and not the number of links, that supports a fact-finder's verdict. See Evans v. State, 202 S.W.3d 158, 166 (Tex. Crim. App. 2006). Possible links include: (1) whether the defendant was present when the drugs were found; (2) whether the drugs were in plain view; (3) the defendant's proximity to and the accessibility of the drugs; (4) whether the defendant was under the influence of drugs when arrested; (5) whether the defendant possessed other contraband; (6) whether the defendant made any incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of drugs; (10) whether the defendant owned or had the right to possess the place where the drugs were found; (11) whether the place the drugs were found was enclosed; (12) the amount of drugs found; (13) whether the defendant possessed weapons; and (14) whether the defendant possessed a large amount of cash. Taylor, 106 S.W.3d at 831; Porter v. State, 873 S.W.2d 729, 732 (Tex. App.-Dallas 1994, pet. ref'd).
        Several links are present in this case. Appellant was present at the time of the search and was the only person in the motel room during the arrest. The motel room where the drugs were found was registered in appellant's name and no other name was listed on the motel register for that room. Appellant's conduct in attempting to kick the black bag containing the weapon, drugs, and drug paraphernalia under the bed suggested knowledge and control over the contraband. These links are sufficient to establish that appellant had care, custody, control or management of the cocaine and, thus, possessed the cocaine. Because it was within the province of the trier of fact to resolve the conflicts in the evidence, we conclude, viewing the evidence under the appropriate standard, that the jury's finding is supported by factually sufficient evidence. See Watson, 204 S.W.3d at 417. Appellant's first issue is overruled.
        Possession of the firearm
        To prove unlawful possession of a firearm by a felon, the State had to prove beyond a reasonable doubt that appellant was previously convicted of a felony offense and possessed a firearm after conviction and before the fifth anniversary of his release from either confinement following the felony conviction or release from supervision. See Tex. Pen. Code Ann. § 46.04(a)(1) (Vernon 2003); Martinez v. State, 986 S.W.2d 779, 780 (Tex. App.-Dallas 1999, no pet.). The State had to show appellant exercised actual care, control, or custody of the firearm, he was conscious of his connection with the firearm, and he possessed the firearm knowingly or intentionally. See Tex. Pen. Code Ann. § 1.07(a)(39) (Vernon 2003); Bates v. State, 155 S.W.3d 212, 216 (Tex. App.-Dallas 2004, no pet.).
        When there is no evidence appellant was in exclusive control of the place where the firearm was found, the State must link him to the firearm. See Poindexter, 153 S.W.3d at 406; Taylor, 106 S.W.3d at 831. No set formula of facts exists dictating a finding of links sufficient to support an inference of knowing possession. See Taylor, 106 S.W.3d at 831. It is the logical force of the factors, not the number of factors present, that determines whether the elements of the offense have been established. See id.
        In this case, even if one assumes someone else was in the motel room with appellant, there is sufficient evidence to link appellant to the firearm. Appellant was present at the time of the search; he was the only person present when the search was conducted, other than the officers who arrested him; the motel room where the gun was found was registered in appellant's name and no other name was listed on the register for that room; and appellant's conduct in attempting to kick the black bag under the bed suggested his knowledge and control over the bag and its contents. Viewing the evidence under the appropriate standard, we conclude it is factually sufficient to support the conviction. Appellant's second issue is overruled.
        Possession with the intent to deliver
        To prove the offense of possession with the intent to deliver, the State had to prove, in addition to possession, that the accused intended “to transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship. The term includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia.” Tex. Health & Safety Code Ann. §§ 481.002(8), § 481.112(a) (Vernon 2003). Intent to deliver a controlled substance can be proved by circumstantial evidence, including evidence regarding an accused's possession of the contraband. Patterson v. State, 138 S.W.3d 643, 649 (Tex. App.-Dallas 2004, no pet.). Factors courts have considered include: (1) the nature of the location at which the accused was arrested; (2) the quantity of contraband in the accused's possession; (3) the manner of packaging; (4) the presence or lack thereof of drug paraphernalia (for either use or sale); (5) the accused's possession of large amounts of cash; and (6) the accused's status as a drug user. See Robinson v. State, 174 S.W.3d 320, 330 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd) (citing Williams v. State, 902 S.W.2d 505, 507 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd)). An oral expression of intent is not required. “Intent can be inferred from the acts, words, and conduct of the accused.” Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). Expert testimony by an experienced law enforcement officer may be used to establish an accused's intent to deliver. See Robinson, 174 S.W.3d at 330; see also Mack v. State, 859 S.W.2d 526, 529 (Tex. App.-Houston [1st Dist.] 1993, no pet); Branch v. State, 833 S.W.2d 242, 244-45 (Tex. App.-Dallas 1992, pet. ref'd).
        Detective Potts, a narcotics officer with thirteen years of experience in the Narcotics Division of the Dallas Police Department, testified that the cocaine recovered from the motel room weighed 4.45 grams, contained forty-four individual doses, and had a street value of $440. He also recognized the drug paraphernalia items pictured in State's exhibit number three--the scales, the sifter, and the “baggies”--as being the implements of a drug enterprise. Potts said it is common for drug dealers to carry guns to protect themselves from people who might try to steal their drugs or their money. He also testified that a drug user would not normally possess such a large quantity of cocaine because a user would have enough money for only one day's supply of drugs. In Pott's opinion, a person staying in a motel off of the highway who is in possession of a quantity of cocaine like the amount seized from appellant's motel room, along with a handgun, two scales, “baggies,” a knife, and a sifter, possesses the drugs with the intent to deliver them. In addition, other officers testified that the Motel 6 where appellant was registered was known for having a high level of criminal activity. Officers had made a number of arrests at that location for offenses involving drugs, weapons, and stolen vehicles. Viewing the evidence under the appropriate standard, we conclude it is factually sufficient to support appellant's conviction for possession of cocaine with the intent to deliver. Appellant's third issue is overruled.
        The motion to suppress
        In his fourth issue, appellant claims the trial court erred in denying his motion to suppress because the search of the black bag exceeded the scope of a proper search incident to an arrest.
        In reviewing the trial court's ruling on a motion to suppress evidence, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give great deference to the trial court's determination of historical facts while reviewing the trial court's application of Fourth Amendment search and seizure law de novo. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Carmouche, 10 S.W.3d at 327. At the suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the witnesses' credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). We afford almost total deference to the trial court's determination of the historical facts that the record supports, especially when the trial court's findings turn on evaluating a witness's credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We apply the same level of deference to the trial court's rulings on mixed questions of law and fact if the ultimate resolution of those questions turns on an evaluation of credibility and demeanor. Id. When, as in this case, the trial court does not make explicit findings of fact, we review the evidence in a light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact supported by the record. Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006).
        The protections of the Fourth Amendment apply to the occupant of a motel room. See Stoner v. California, 376 U.S. 483, 490 (1964); Moberg v. State, 810 S.W.2d 190, 194 (Tex. Crim. App. 1991); Mondragon-Garcia v. State, 129 S.W.3d 674, 677 (Tex. App.-Eastland 2004, pet. ref'd).
“Under the Fourth and Fourteenth Amendments, a search conducted without a warrant issued upon probable cause is 'per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.'” Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). One exception is a search incident to a lawful arrest. See Chimel v. California, 395 U.S. 752 (1969). When an arrest is made, the arresting officer may search the person arrested and the area within the person's “immediate control” to remove any weapons and seize any evidence that might be concealed or destroyed. Id. at 762-63; see also Carrasco v. State, 712 S.W.2d 120, 122 (Tex. Crim. App. 1986).
        During the hearing on the motion to suppress, Nies, the only testifying witness, stated that he was dispatched to the Motel 6 to “back up” Morrow in making arrests. Morrow told him the individual in room 307--whom Morrow identified by name and birth date as appellant--was wanted on misdemeanor arrest warrants, so Nies went to that room accompanied by two other officers. After appellant opened the door, Nies asked him if his name was Calvin Smith. Appellant said “yes.” Nies also asked, “You know you have some warrants out?” Appellant again replied “yes.” Appellant asked if he could get dressed and Nies said, “Yeah, go ahead.” When Nies asked appellant if the officers could enter the room, appellant invited them to “come on in.”
        Appellant walked between the two beds, pulled on his jeans, and attempted to kick a black bag underneath the bed as if he was trying to hide it. Nies said, “It was obvious he was trying to kick it so I wouldn't see it.” When asked if appellant “made any move for the bag” after being told he was under arrest, Nies said appellant kicked the bag under the bed. Nies also said appellant was handcuffed while he was standing “right in front” of the bag. After handcuffing appellant, Nies pulled appellant away from where he was standing, gave him to one of the other officers, and then picked up the bag and opened it. The bag contained a loaded .357 revolver, a white powder believed to be cocaine, “baggies,” and some scales. The officers searched the entire room but found “no other luggage or anything in that room.” Without being asked any questions, appellant volunteered that the gun and the drugs belonged to his friend, who was supposed to “come back to the room and get them.” At the jail, during booking search, additional drugs were found on appellant. After the close of the evidence, the trial court denied the motion to suppress.
        Appellant claims the black bag was not within his “immediate control” at the time of the arrest because there is no indication he ever held the bag. He also argues that he removed the bag from his immediate control by pushing it under the bed. Beginning with appellant's first contention, a search incident to an arrest includes not only the arrestee's person but the area within the arrestee's “immediate control,” which is to say “the area into which an arrestee might reach in order to grab a weapon or evidentiary items.” Chimel, 395 U.S. at 763. This can include both open and closed spaces. See id. (“A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested.”). The “[e]vidence and weapons which may be seized without a warrant incident to lawful arrest under Chimel need not be in plain view. Indeed, it is the gravamen of Chimel that an arresting officer must be permitted to search the area within a suspect's immediate control not only for weapons and evidence which are in plain view but also for those which are hidden.” Tarpley v. State, 565 S.W.2d 525, 531 (Tex. Crim. App. 1978). As for appellant's second contention, we first note that, according to Nies' testimony, the bag “didn't make it very far up under” the bed after appellant kicked it. Furthermore, viewing the evidence in the light most favorable to the trial court's ruling, the record indicates appellant tried to kick the bag at the time he was placed under arrest and that he was standing “right in front” of it when he was handcuffed. It is certainly conceivable appellant could have gained access to the bag. The bag was within appellant's reach and, thus, within his immediate control.
        Appellant also contends he was handcuffed and removed from the room before the bag was searched. Since the officers had probable cause to arrest appellant, they had the right to search his person and the area within his immediate control. Chimel, 395 U.S. at 763. The crucial factor here is whether the bag was, at the time of appellant's arrest, located within the area of his immediate control. See id. Since the bag was within appellant's immediate control, it made no difference whether he remained in the motel room after being placed under arrest. Cf. Mondragon-Garcia v. State, 129 S.W.3d 674, 677 (Tex. App.-Eastland, pet. ref'd). Moreover, according to the record, Nies testified that after appellant was handcuffed, he was standing at the foot of the bed with one of the other officers. Viewing the evidence in the light most favorable to the trial court's ruling, since Nies searched the bag shortly after appellant was handcuffed and under the control of another officer, the trial court could have reasonably concluded appellant was present in the room when the bag was searched. Accordingly, the trial court did not abuse its discretion when it denied appellant's motion to suppress. We overrule appellant's fourth issue.
        Notice of intent to seek deadly weapon finding
        In his fifth issue, appellant claims the deadly weapon finding should be deleted from the court's judgment in the drug case because the State failed to provide reasonable notice of its intent to seek a deadly weapon finding. The State argues that the notice, which was filed six days before any evidence was presented, was reasonable.
        In the drug possession case, the State filed a notice of “Special Plea of Use or Exhibition of a Deadly Weapon” on May 4, 2006. The case was set for trial on May 8, 2006, jury selection began on May 9, and the first evidence was presented on May 10, 2006, six days after the notice was filed. Appellant did not file a motion for continuance or request a continuance of trial based on the inadequacy of the notice.
        “A defendant is entitled to notice that the State will seek an affirmative finding that a deadly weapon was used during the commission of the charged crime.” Brooks v. State, 847 S.W.2d 247, 248 (Tex. Crim. App. 1993) (per curiam) (citing Ex parte Patterson, 740 S.W.2d 766, 775 (Tex. Crim. App. 1987)). “Such notice need not be contained in the indictment under which the defendant is ultimately tried.” Brooks, 847 S.W.2d at 248 (citing Patterson, 740 S.W.2d at 776); see also Flenteroy v. State, 187 S.W.3d 406, 411 (Tex. Crim. App. 2005). “Rather, the defendant is simply 'entitled to notice in some form that the use of a deadly weapon will be a fact issue at the time of prosecution.'” Brooks, 847 S.W.2d at 248 (quoting Ex parte Beck, 769 S.W.2d 525, 526 (Tex. Crim. App. 1989)); see also Ex parte Minott, 972 S.W.2d 760, 762 (Tex. Crim. App. 1998).
        In Patterson v. State, 138 S.W.3d 643, 647 (Tex. App.-Dallas 2004, no pet.), we declined to adopt a “definitive rule” for timeliness, concluding that notice provided twenty minutes before jury selection began was not adequate. In reaching this conclusion, we noted the different result reached in Nolasco v. State, 970 S.W.2d 194, 197 (Tex. App.-Dallas 1998, no pet.), where we concluded notice received a few hours before the start of voir dire was sufficient. In Nolasco, however, unlike Patterson, the appellant did not request a continuance to prepare against the new allegations and admitted he had knowledge of the weapon in the case, which was the subject of a motion to suppress. Id. at 197; see also Patterson, 138 S.W.3d at 647 n.2. The appellant also made no claims of surprise or prejudice. Nolasco, 970 S.W.2d at 197. We concluded the appellant's “failure to request a continuance to remedy his perceived inadequate notice problem defeats any due process claim he might have.” Id.
        We reach a similar conclusion in the present case. As in Nolasco, appellant did not seek a continuance and makes no claims of surprise or prejudice. Furthermore, he had knowledge of the firearm because he was charged with possession of the firearm based on his status as a convicted felon. He also filed a motion to suppress in both the drug and firearm possession cases that sought to suppress all evidence seized from the search of his person and property. Based on the facts of this case, we conclude the trial court did not err in entering the deadly weapon finding. We overrule appellant's fifth issue.
        Article 38.23 instruction
        In his sixth issue, appellant argues the trial court erred by failing to submit appellant's requested instruction under article 38.23 of the Texas Code of Criminal Procedure.
        When an appellant alleges jury charge error on appeal, our first task is to determine whether error actually exists in the charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Only when there is jury charge error do we then determine if the error caused sufficient harm to warrant reversal. Hutch, 922 S.W.2d at 170-71; Almanza, 686 S.W.2d at 171.
        Article 38.23(a) provides that, if the evidence raises a fact issue as to whether the admitted evidence was obtained in violation of the United States Constitution or Texas laws, then “the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.” Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005); see also Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002).
        According to the record, appellant objected to the jury charge in each case and asked the trial court to include an article 38.23 instruction in the charge. The trial court denied this request on the basis that appellant did not have standing to object to the search since he testified the bag did not belong to him.
        Appellant claims there is a factual dispute concerning whether he consented to the officers' entry into the motel room. He points out that all three officers testified that he consented to their entry into the motel room while appellant testified Nies forced his way into the room after appellant opened the door. Appellant, however, does not challenge the validity of the misdemeanor arrest warrant from Garland or the officers' authority to arrest him based on that warrant. An officer executing an arrest warrant is authorized to enter a residence if he reasonably believes the premises entered is the residence of the person named in the warrant and has reason to believe the person is in the residence at the time the arrest warrant is executed. Morgan v. State, 963 S.W.2d 201, 204 (Tex. App.-Houston [14th Dist.] 1998, no pet.) (citing Payton v. New York, 445 U.S. 573, 603 (1980)). Moreover, the limited police authority recognized in Payton to enter a suspect's residence to execute an arrest warrant when police reasonably believe the suspect to be home applies to the execution of both felony and misdemeanor warrants. Green v. State, 78 S.W.3d 604, 610-11 (Tex. App.-Ft. Worth 2002, no pet.).
        Appellant was entitled to an article 38.23 instruction only if the evidence raised a factual issue concerning whether the evidence was obtained in violation of the federal constitution or the Texas Constitution or any of its laws. Bell v. State, 938 S.W.2d 35, 48 (Tex. Crim. App. 1996). There must also be a factual dispute as to how the evidence was obtained. Balentine v. State, 71 S.W.3d 763, 773 (Tex. Crim. App. 2002). In this case, appellant's claim that he did not consent to the officers' entry into the motel room does not raise a factual dispute as to how the evidence against him was obtained because the officers did not need appellant's consent to enter the motel room. Thus, we conclude the trial court did not err in denying appellant's request for an article 38.23(a) instruction. We overrule appellant's sixth issue.
        We affirm the trial court's judgments.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060803F.U05
 
Footnote 1 The State introduced copies of the arrest warrants. The warrant from the City of Garland was for the offense of “no seat belt--front seat.” The warrant from the City of Mesquite indicated that appellant had been found guilty of “disorderly conduct--abusive language” and failed to pay the ordered fine and court costs.
Footnote 2 Appellant was not able to kick or push the bag under the bed because the beds in the motel room had a “buffer bumper” just underneath the bed rail.
Footnote 3 The drug paraphernalia seized from room 307 was not introduced at trial. During his direct testimony, Morrow explained that the Garland Police Department's property room was running out of storage space, so it was decided that all the drug paraphernalia evidence relating to class C misdemeanor charges would be destroyed. A photograph would be taken of the evidence shortly before it was destroyed. In implementing this policy, however, the individuals in charge of the police property room mistakenly destroyed all drug paraphernalia evidence, not just the evidence relating to class C misdemeanor charges. The paraphernalia evidence in appellant's case was destroyed before this problem could be corrected. As a result, only a photograph of the paraphernalia seized from room 307 was introduced at trial.
Footnote 4 The officers did not recall seeing any beer bottles in the room and they did not find a note or piece of paper.
Footnote 5 Richard Hamb, a Dallas County Sheriff's Deputy, testified that he took appellant's fingerprints and found they matched the fingerprints on a pen packet that showed appellant was convicted of aggravated assault on November 16, 1999.
Footnote 6 Possession with intent to deliver is punishable as a second-degree felony if the amount of the controlled substance is between one and four grams. See Tex. Health & Safety Code Ann § 481.112(c) (Vernon 2003).